Case No: C3/2003/1408
Neutral Citation number: [2004] EWCA Civ 80
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM MR JUSTICE ELIAS
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Tuesday 10th February 2004
Before :

LORD JUSTICE KENNEDY
LORD JUSTICE CLARKE
and 
LORD JUSTICE WALL

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Between :

	The Queen on the application of Brooks	Appellant	
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	The Parole Board	Respondent	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Edward Fitzgerald QC and Phillippa Kaufmann (instructed by Scott-Moncrieff, Harbour, Sinclair) for the Appellant
Ms Kristina Stern (instructed by Treasury Solicitors) for the Respondent

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Judgment
Lord Justice Kennedy: 
1.	This is a claimant’s appeal from a decision of Elias J who, on 11th June 2003, dismissed the claimant’s application for judicial review of the decisions of the first defendant dated 10th January 2003 and of the second defendant dated 2nd April 2003.  The case concerns the production of evidence before the Parole Board, and the extent to which the Board is entitled to act if the best evidence is not before it.
Background Facts.
2.	On 19th December 1977 the claimant, who was then 22 years of age, pleaded guilty to the rape of a 19 year old woman, and was sentenced to life imprisonment, with a tariff eventually fixed at 8 years.  He also pleaded guilty to two offences of abducting a woman for unlawful sexual intercourse, attempted abduction and common assault, for which he received concurrent sentences of imprisonment.  He had previously been convicted of a number of sexual offences including, in September 1974, rape, attempted rape, robbery and two indecent assaults for which he had received a total of 5 years imprisonment.
3.	On 9th December 1993 the claimant was released from prison on licence.  On 11th September 1997 he was recalled because of an allegation of robbery.  A woman complained of being restrained from behind and made to hand over her purse.  He stood trial for that offence in March 1998, and was acquitted, but was not released on licence for a second time until July 2000 because the Parole Board considered, to a very high degree of probability, that he had committed the robbery.  Thereafter, in September 2001, his marriage broke down and he moved to live with a new partner, Shirley Langhorne.  Some tensions in that relationship were noticed by Sylvia Pettit, the claimant’s supervising probation officer, in May and June 2002.  They were probably caused in part, it seems, by the restrictions placed on the claimant’s access to children because of his criminal record.  On 22nd August 2002 Sylvia Pettit visited the claimant and Miss Langhorne at home, as she had done on many previous occasions.  She noticed two small scratch marks on Miss Langhorne’s face.  The claimant eventually admitted that he had inflicted those injuries.  His ex-wife was contacted and agreed that he could return to sleep at her home, and he was required to do so.  The Assistant Chief Probation Officer then prepared a warning letter to the claimant requiring him not to visit or approach Shirley Langhorne without the consent of his supervising officer, but that letter was not sent because on the following day, 23rd August 2002, Shirley Langhorne went to the Newark Probation Office, apparently in fear and distress.  She was interviewed by Marion Saddington, a duty probation officer.  During lengthy interviews Shirley Langhorne made serious allegations about the claimant.  In particular she said that –
(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.  
4.	In the light of what Shirley Langhorne had said to Marion Saddington the ACPO recommended that the claimant be recalled to prison, and that same evening the Secretary of State revoked the claimant’s licence pursuant to section 32(2) of the Crime (Sentences) Act 1997.  The notice of revocation of life sentence sent to the claimant, so far as relevant reads -
“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.
5.	The licence having been revoked, section 32(4)(b) of the 1997 Act required the Secretary of State to refer the case back to the Parole Board, which then had to consider, pursuant to subsection 5, whether to direct the claimant’s release.  The case was considered on paper by the Parole Board on 30th August 2002, when the decision of the Secretary of State was confirmed on the information then available.  That early consideration did not suffice for the purposes of the 1997 Act, because the claimant was entitled to the opportunity of an oral hearing.  
6.	Also on 30th August 2002 Shirley Langhorne made a witness statement to a police officer.  The material part of that statement reads -
“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.
7.	It seems that on 3rd October 2002 Shirley Langhorne telephoned the claimant’s solicitors and asked if it was possible to “withdraw the charges”.  The solicitors rightly told her to speak to the police and to the probation service, and informed the Secretary of State what had occurred.  Shirley Langhorne did not thereafter contact either the police or the probation service.  
8.	On 6th November 2002 the claimant’s case was formally referred by the Secretary of State to the Parole Board, and on 7th November 2002 the Lifer Unit at the Home Office on behalf of the Secretary of State, acknowledged the two letters from the claimant’s solicitors, and suggested that it would be more appropriate for the probation service to obtain a statement from Shirley Langhorne.  The writer had arranged for the attendance before the Parole Board of the supervising probation officer, and suggested that it may be of benefit if the ACPO, Mr Kay, were also to attend.  The letter concludes -
“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.
9.	The oral hearing before the Parole Board was arranged to take place on 27th November 2002, and on 20th November 2002 the Parole Board secretariat wrote to the Lifer Unit to inform the Secretary of State that the chairman of the Parole Board panel had made certain directions pursuant to Rule 9 of the Parole Board Rules 1997, including a direction that a signed statement be taken from Shirley Langhorne and that further information be obtained from the supervising probation officer.  The letter also recorded that in accordance with Rule 7 of the 1997 Rules the chairman had requested the attendance of the supervising probation officer and the alleged victim, and concluded -
“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.”
10.	The directions given by the chairman on 20th November 2002 resulted in enquiries being made of Sylvia Pettit who, on 25th November 2002 was able to furnish copies of her own record of her visit to the claimant’s home on 22nd August 2002 and of the statement made by Shirley Langhorne to the police on 30th August 2002.  She also prepared a report dated 25th November 2002 for use by the Parole Board.  She had seen the claimant again on 5th November 2002 and noted worrying comments made by the claimant.  In particular –
(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.
11.	On 27th November 2002 the Parole Board Panel convened at Leicester Prison, and acceded to an application by the Secretary of State to defer the hearing to 20th December 2002.  The chairman then directed that Sylvia Pettit and Shirley Langhorne should both attend at the deferred hearing, and made other directions with which we need not be concerned. 
12.	On 29th November 2002 Sylvia Pettit gave the Lifer Unit the address (but not the telephone number) of Shirley Langhorne, and on 9th December 2002 Patrick Hunter of the Lifer Unit wrote to Shirley Langhorne at that address.  We were not told why that letter was not written for 11 days, and, having regard to the directions made on 27th November and the imminence of the adjourned hearing date, the delay is surprising.  In his letter Mr Hunter explained what was happening and then said –
“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.”
13.	On 11th December 2002 the Parole Board secretariat wrote to both the Lifer Unit and the claimant setting out in writing the directions which had been given on 27th November.  In the letter to the Lifer Unit direction (6) was –
“The alleged rape victim to attend as a witness (if possible)”
14.	That letter ended -
“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 …”
15.	On 18th December Sylvia Pettit telephoned the Lifer Unit to say that Shirley Langhorne had been in touch to say that she would not attend on 20th December.  That information was passed on by the Lifer Unit to the claimant’s solicitors on 19th December, the Lifer Unit contacted Marion Saddington and subsequently the Secretary of State gave notice that he would be seeking permission for Marion Saddington to attend the hearing to give oral evidence.
16.	In preparation for the hearing on 20th December 2002 the claimant made a witness statement in which he denied raping Shirley Langhorne or being violent to her otherwise than as already admitted to Sylvia Pettit and others.
The hearings on 20th December 2002 and 6th January 2003.
17.	At the hearing on 20th December 2002 Shirley Langhorne was not present.  The Parole Board panel took the view that she had been contacted and refused to attend, and as the Board itself had no power to compel her attendance the hearing should proceed in her absence, and the claimant’s solicitor agreed to that course (see the statement of the chairman of the panel, Judge Bing, paragraph 9).  
18.	On behalf of the claimant it was submitted that the panel should not receive hearsay evidence of the claimant having raped Shirley Langhorne on 22nd March 2002.  Counsel for the Secretary of State submitted that the right course was for the panel to hear all of the evidence, and then to decide what to make of it, and that was the course which the panel decided to follow.  No one, it seems, even suggested that the panel should direct the Secretary of State to seek a witness summons from the County Court or the High Court in reliance on CPR part 34.4, and certainly there was no request for an adjournment to enable that course to be followed.
19.	The hearing did not conclude on 20th December 2002, but the panel did hear oral evidence from Marion Saddington and Sylvia Pettit, and it was adjourned to 6th January 2003 when further submissions were made. The written representations of the claimant were, of course, part of the material before the panel.
The Parole Board decision of 10th January 2003.
20.	The Parole Board gave its decision in a letter to the claimant dated 10th January 2003.  It was not satisfied that the level of risk present was acceptable and therefore did not direct the claimant’s release.  The letter explained that the panel had concluded that the evidence of Marion Saddington and Sylvia Pettit as to what Shirley Langhorne had said about what happened to her on 22nd March 2002 was admissible “as providing an account of the events which were relevant to our determination”.  The letter went on to make it clear that the admitted evidence only showed that rape had been complained of.  It did not necessarily show that rape had occurred.  
21.	The Parole Board letter then went on to evaluate the complaint of rape, setting out in detail those factors which cast doubt upon it, and those factors which appeared to support it.  Before us there has been no criticism of that exercise, save for the observation in paragraph 6 of the letter that “Ms Saddington, who had heard Ms Langhorne’s complaint was impressed with her credibility, as was Ms Pettit, to whom the allegation was repeated on 29th August”.  It is said to us that the panel should not have given any weight to the views of the probation officers as to credibility.  
22.	The letter goes on to deal with domestic violence as recorded by Sylvia Pettit, and says in paragraph 8 -
“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 [1996] 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.
23.	On 17th March 2003 the claimant’s solicitor wrote to the Treasury Solicitor submitting that the claimant had not had a fair hearing before the Parole Board and asking the Secretary of State to set aside the decision of 10th January 2003 and arrange a fresh hearing.  On 18th March 2003 the Head of Casework at the Parole Board responded, indicating that the Parole Board had discharged its function, and that the Secretary of State was not prepared to refer the case back to the Parole Board.  That was confirmed by the Treasury Solicitor in his letter of 2nd April 2003, which is the second decision under challenge in these proceedings.
24.	On 8th April 2003 the claimant, by his solicitors, commenced these proceedings.  In paragraph 3 of section 1 of Form N463, in which the claimant seeks urgent consideration of his claim, there appears this succinct formulation of his case -
“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.
25.	When the case came before Elias J in June 2003 the issue was said to be whether the Parole Board acted unlawfully in considering hearsay allegations of rape against the claimant.  Counsel for the claimant accepted that nothing turned on the second decision under challenge, the decision of the Secretary of State, because unless she could establish the case against the Board the claim must fail.  She submitted that the Parole Board erred in three ways -
(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.”
Legal background.
26.	The Parole Board has for many years been assisting the Secretary of State in relation to issues such as whether prisoners serving mandatory or discretionary life sentences should be released, either for the first time or after recall.  Its members are appointed by the Secretary of State to represent a wide range of experience in dealing with offenders (see paragraph 2 of schedule 5 of the Criminal Justice Act 1991).  
27.	Article 5(4) of the European Convention requires that a serving life sentence prisoner who has served the relevant punitive or tariff part of his sentence is entitled to have the legitimacy of his continued detention reviewed periodically by a court (see Thynne, Wilson and Gunnell v UK [1990] 13 EHRR 666 at paragraph 76).  Initially the Parole Board did not satisfy the requirements of a court because its powers were only advisory.  That was corrected by the Criminal Justice Act 1991, and the relevant provisions are now in the Crime (Sentences) Act 1997, but in Hussain v UK [1996] 22 EHRR 1, where the applicant was detained during Her Majesty’s Pleasure, the European Court explained at paragraph 60 the level and type of review that is required, saying -
“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.
28.	The criteria which the Parole Board has to apply are now to be found in section 28(6)(b) of the 1997 Act, which provides that the Board shall not direct a prisoner’s release unless it “is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.”  That test is to be applied whether the Parole Board is considering release for the first time, or whether the Board is considering the case of a prisoner on licence whose licence has been revoked by the Secretary of State pursuant to section 32(2) of the 1997 Act – See R v Parole Board ex parte Watson [1996] 1 WLR 906 where Sir Thomas Bingham MR said at 916 H -
“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 [2003] 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 [2003] 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.  
29.	As to what material is relevant for the Parole Board to consider when making its evaluation, it is clear from West and from Sim that the Parole Board is not confined to material which would be admissible in criminal or disciplinary proceedings (of which R v Hull Prison Visitors ex parte St. Germain [1979] 1 WLR 149 was an example).  Nor need it follow procedures prescribed in relation to those types of proceedings.  As Sedley LJ said in West at paragraph 44 -
“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.”
30.	In the present case the claimant did seek an oral hearing, and what mattered then was, as Sedley LJ said at paragraph 46, that the reasons for recall should be clearly expressed by the Secretary of State, and that the prisoner should have every reasonable opportunity to contest his recall.  The reasons for recall, and the prisoner’s reasons to the contrary, must be explored, and as Sedley LJ said, among the things that will differ from our received criminal process is the mode of proof.  Provided the overall objective of a fair hearing is met, that should not give rise to any problem.  
31.	In Sim it was specifically held at paragraphs 52 to 55 that hearsay evidence can be taken into account, even when it relates to matters which are disputed.  Judgment in that case was delivered in December 2003, six months after the decision under appeal before us, and at paragraph 56 Keene LJ said -
“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 [2001] 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.
32.	Against that legal background I return now to the facts of this case, and there are, as it seems to me, three questions now to be considered, namely -
(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.
33.	Generally speaking it seems to me that unless a request has been made by or on behalf of one of the parties the chairman of the panel should be slow to direct the Secretary of State to produce a witness for cross-examination, especially if he or she is a witness upon whom the Secretary of State does not intend to rely, because the hearing is going to take place “in the context of an adversarial procedure”, but that was not a difficulty which arose in this case.
34.	At the first hearing on 27th November 2002 the chairman directed that Shirley Langhorne should attend “if possible” at the adjourned hearing on 20th December 2002.  That direction was addressed to the Secretary of State, as is clear from the Parole Board letter of 11th December 2002, but if a witness summons was going to be required it is doubtful if the time scale was realistic.  The directions made on 27th November 2002 resulted in Mr Hunter’s letter of 9th December 2002 which was clearly written without regard to the possibility of a witness summons.  The tone of the letter is commendably sympathetic, but, as Mr Fitzgerald submitted, it did in reality tell Shirley Langhorne that she need not attend if she did not want to do so.  In my judgment as it was already known that Shirley Langhorne was reluctant to confirm in public her allegations against the claimant the letter of 9th December 2002 should have been accompanied by a witness summons.
35.	However, by 19th December 2002 it was clear to everyone involved - the Secretary of State, the claimant’s solicitors and no doubt the Parole Board panel, that Shirley Langhorne did not propose to attend on the following day.  That had certain advantages so far as the claimant was concerned, and his solicitor had the opportunity overnight to consider the situation.  The case against the claimant was plainly going to be less strong than it would have been if Shirley Langhorne had attended and confirmed what she had apparently said to the probation officers and to the police.  Tactically any competent advocate representing the claimant might well conclude that it would be in the claimant’s interests to press for the hearing to proceed without Shirley Langhorne, in the hope that it might be possible to persuade the panel either to exclude entirely the hearsay evidence of rape, or at least to give it relatively little weight.  That was the course which on 20th December 2002 the claimant’s solicitor decided to follow, and it can be said that the present proceedings are little more than an attempt to explore the other alternative which was then available.  The claimant’s solicitor could have asked the chairman of the panel to direct the Secretary of State to issue a witness summons, and to adjourn the hearing to enable the summons to be served.  Neither the Parole Board itself nor the Secretary of State can be criticised for not seeking a witness summons at that stage.  They were both ready to proceed on the information which was available, and the claimant’s solicitor having  chosen, no doubt with the agreement with her client,  to agree to that course, it seems to me that this court should not now entertain any criticism of the decision to proceed.
36.	I am fortified in that conclusion by a consideration of what happened thereafter.  The panel on 20th December 2002 made it clear that it was going to hear the hearsay evidence of rape, without prejudice to its ultimate decision as to the admissibility and weight of that evidence, but neither on 20th December 2002 nor on 6th January 2003 does it ever seem to have been suggested on behalf of the claimant that a further attempt should be made to secure the attendance of Shirley Langhorne for cross-examination.  That may have been attributable in part to the fact that in reality, if anyone even considered the possibility of a witness summons, they must have realised that it would be very unlikely to produce any worthwhile result.  Shirley Langhorne might be prevailed upon to attend, but she would probably refuse to testify.  If she did agree to testify she would be very unlikely to repeat her allegations against the claimant, and if she distanced herself from them that would add little to what the Parole Board already knew from the documentation to be her position. 
37.	I, like Keene LJ in Sim 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 Elias J indicated in the present case, that could require production of the complainant if someone in the position of Shirley Langhorne was willing to testify, but as Keene LJ went on to point out, the requirements of fairness depend on the circumstances of the individual case, and in my judgment there was nothing unfair about the decision of this panel to proceed as it did.  As I have made clear, neither the Parole Board nor the Secretary of State did anything to inhibit the claimant’s opportunity to test by cross-examination the allegations of Shirley Langhorne before those allegations were taken into account, but in the particular circumstances of this case that opportunity was not worth much, and the claimant’s solicitor was entitled to decide not to pursue it more than she did.
Consideration of the allegations made by Shirley Langhorne.
38.	Once the situation has been properly analysed in relation to the non-attendance of Shirley Langhorne, and the decision to proceed without her, it seems to me that there can be little difficulty in deciding whether in the absence of Shirley Langhorne the panel should have had regard to her allegations of rape.  The duty of the panel was to decide whether it was satisfied that it was no longer necessary for the protection of the public that the claimant should be confined.  In making that assessment it was entitled, and indeed bound, to have regard to all relevant information placed before it, including hearsay (see Sims) provided that the claimant was given a proper opportunity to respond, and that opportunity was in fact given.  The situation in relation to consideration of the allegations is just the same as it would have been if Shirley Langhorne were dead or physically unable to attend, and, as Elias J pointed out, if the allegations of Shirley Langhorne were not to be considered in her absence that must mean that the claimant could not even be asked to comment upon them.  
39.	What the panel had to do was to evaluate the allegations carefully in the context of the rest of the information before it, taking fully into account the absence of cross-examination, and that exercise was carefully and fully performed, as can be seen from the letter of 10th January 2003, so it is not surprising that in relation to this aspect of the matter Mr Fitzgerald no longer makes any complaint, save for the matter to which I now turn.
The probation officers’ assessment of credibility.
40.	The panel did give some weight to the assessment made by the probation officers of Shirley Langhorne’s credibility.  It was only one factor amongst many, but it was mentioned in paragraph 6 of the letter of 6th January 2003.  In my judgment the panel was fully entitled to take cognisance of the assessment, just as they should have given some weight to it if one or other of the probation officers had formed the impression that Shirley Langhorne was not telling the truth.  Of course ultimately it was the decision of the panel which mattered, but the panel could be helped to decide by knowing how Shirley Langhorne’s hearers evaluated what she said.  
Conclusion.
41.	For those reasons, which are substantially the same as those given by Elias J in the court below, I would dismiss this appeal. 
Lord Justice Clarke:
42.	I gratefully adopt the account of the facts and the procedural events set out by Kennedy LJ.  There is only one aspect of the case on which I have reached a different conclusion.  It arises out of my concern that the possibility of the Secretary of State being asked or required to serve a witness summons on Ms Langhorne to compel her attendance before the Parole Board does not seem to have been given any real consideration by anyone.
43.	This is of concern because a central question addressed by the Board was whether the claimant raped Miss Langhorne in March 2002.  Although there were other bases upon which the Board might have refused to recommend release, it is plain from the Board’s decision letter of 10 January 2002 that its conclusion on that central question played an important part in its decision.  The Board expressly concluded in paragraph 5 that it was more probable than not that the complaint of rape by Ms Langhorne was true.  
44.	Although the Board said in paragraph 10 that there was no burden on either side, it added in paragraph 11:
“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 [1996] AC 563 and we applied the dicta in his speech at pages 586 and 587 in reaching our decision.”
45.	Part of what Lord Nicholls said has been quoted by Kennedy LJ in paragraph 22 above.  The Board thus found the allegations proved, taking account of their serious nature.  That conclusion not only had a significant effect on the Board’s decision but it is also likely to have a significant effect upon the Board’s approach to the claimant’s applications for release in the future and may well result in his spending a considerable further time in prison.
46.	My concern relates only to the first of the questions identified by Kennedy LJ in paragraph 32, namely whether more should have been done, and if so by whom, to secure the attendance of Ms Langhorne to give oral evidence before the Parole Board panel.  I entirely agree with him, for the reasons which he has given, that, once that question has been answered in the negative, the answers to the other questions are plain and there is no basis for allowing the appeal.
47.	I turn therefore to the question which worries me.  I agree with Kennedy LJ that the Parole Board Rules contemplate that the witnesses will be called either by the Secretary of State or by the prisoner.  I also agree with him that the chairman of the panel was entitled to give directions under rule 9 which could if necessary have included a direction to the Secretary of State to arrange for the attendance of Ms Langhorne by obtaining a witness summons pursuant to CPR 34.4.  What worries me is that no one appears to have given any consideration to that question, even though the importance of the attendance of Ms Langhorne was recognised by all sides.
48.	The facts identified by Kennedy LJ seem to me to support those conclusions.  Thus on 10th September 2002 the claimant’s solicitors wrote to the Secretary of State giving notice that “we want the alleged victim and the supervising probation officer to be called as witnesses at the hearing” and saying that they took the view that it was the responsibility of the Secretary of State to arrange it.  They also said that the claimant was entitled to a speedy hearing.  On 7th November the Secretary of State responded, wrongly asserting that it was the responsibility of the Parole Board and not the Secretary of State to secure the attendance of the alleged victim.
49.	On 20th November 2002 the Board secretariat wrote to the Lifer Unit setting out the directions given by the chairman of the panel, which included a direction that a signed statement be taken from Ms Langhorne and, albeit by reference to an inapposite use of rule 7, that she attend the hearing.  The Lifer Unit asked for the hearing to be deferred in order, among other things, to enable Ms Langhorne to be contacted.  It is right to say that the claimant’s solicitors’ response to that application was as set out in their letter quoted in paragraph 9 above.  Their stance at that time was that the hearing should proceed and that the Secretary of State could not prove his case, especially given the indication by the alleged victim that she wanted to “withdraw the charges”.
50.	On 27th November the Board adjourned the hearing until 20th December and the chairman of the panel directed, among other things, that Ms Langhorne attend that hearing.  On 9th December Mr Hunter of the Lifer Unit wrote the letter to Ms Langhorne which Kennedy LJ has quoted at paragraph 12 above.  I will not set out the whole letter again but it contained these important statements relevant to whether Ms Langhorne might attend the hearing.  Because of the nature of the allegations it was the Board’s view that her oral evidence was crucial.  She could not be compelled to attend the hearing and no pressure would be applied to her.  If she attended, the claimant would be there in person sitting in the same room while she gave her evidence.  Towards the end the letter included this sentence:
“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.”
51.	It is plain from that letter that it was not appreciated on behalf of the Secretary of State that he had power to seek a witness summons to compel Ms Langhorne to attend.
52.	On 11th December the Parole Board secretariat wrote to both the Lifer Unit and the claimant setting out the panel’s directions including that “the alleged rape victim to attend as a witness (if possible)” and asking the Lifer Unit to ensure that all the directions were complied with before the hearing.  Ms Langhorne subsequently told Sylvia Pettit that she would not attend on 20th December and that information was passed to the parties and the panel.  The hearing then proceeded in the manner described by Kennedy LJ.
53.	In the result the hearing proceeded without the oral evidence of Ms Langhorne and without any witness summons being issued to try to compel her attendance.  I am concerned that an important reason for that was that neither the Secretary of State nor the Board was aware that it was legally possible to seek a witness summons under CPR 34.4.  As already indicated, I agree with Kennedy LJ that the chairman of the panel could have included a direction that the Secretary of State procure the attendance of Ms Langhorne, if necessary by obtaining a witness summons.  It is plain from the statement of the chairman, Judge Bing, that he was unclear as to the position.  He was aware of only one previous case in which such a summons had been sought, in that case by the prisoner.
54.	Judge Bing gives examples of cases in which witnesses are reluctant to attend hearings, which I entirely understand.  However, it is I think clear from Judge Bing’s statement that no consideration was given to the issue of a witness summons.  In paragraph 9 he says:
“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.”
55.	In fact the Board had power to direct the Secretary of State to issue a witness summons, which it did not consider exercising because it did not know that it had the power.
56.	Equally the Secretary of State did not consider exercising such a power because, as the letter of 9th December shows, the person responsible was also unaware that the Secretary of State could apply for a witness summons under CPR 34.4.  I agree with Kennedy LJ that the letter in reality told Ms Langhorne that she need not attend if she did not want to.  I also agree with him that, as it was already known that Ms Langhorne was reluctant to confirm in public her allegations against the claimant, the letter should have been accompanied by a witness summons.
57.	The position is thus that the panel did not consider directing the Secretary of State to seek the issue of a summons and the Secretary of State did not issue one, in both cases because the true legal position was not appreciated.  If the true legal position had been appreciated either by the panel or by the Secretary of State, and particularly if (as ought to have been the position) it had been appreciated by both, it is much more likely than not that a summons would have been issued.  That is because, as the letter of 9th December put it, the Board’s view was that her oral evidence was crucial.  The importance of her evidence was appreciated by both the panel and the Secretary of State, hence the lengths that the Secretary of State subsequently took to put hearsay evidence before the panel.     
58.	I entirely agree with Kennedy LJ that, unless a request has been made by or on behalf of one of the parties, the chairman of a panel should be slow to direct the Secretary of State to produce a witness for cross-examination, especially if he or she is a witness upon whom the Secretary of State does not intend to rely, but I also agree with him that that was not a difficulty which arose in this case.  It seems to me that if the legal position had been appreciated, it is likely that the panel would have been very reluctant indeed to admit hearsay evidence at least until the Secretary of State had sought a witness summons and Ms Langhorne’s response to it was known.  Moreover, if the Secretary of State had appreciated the position, it is again likely that a witness summons would have been issued. 
59.	The question is whether in these circumstances the court should hold that the failure of the Secretary of State and the Board to consider the position correctly as a result of their failure to appreciate the true position amounts to an error or errors of law leading to unfairness such that the court should quash the decision and order a re-hearing.
60.	In my opinion justice requires that it should, given the importance of the evidence and the importance of giving the claimant an opportunity to test it by cross-examination if possible.  Subject to two points referred to below, this seems to me to be a case which falls within the principle stated at the end of paragraph 57 of the judgment of Keene LJ in R (McKeown) v Wirral MBC [2001] 2 Cr App Rep 12:
“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.”
61.	The two points are those which have contributed to the conclusion reached by Kennedy LJ and set out in paragraphs 35 to 37 above.  The first arises from the conduct of the claimant’s solicitors.  If they took a tactical decision not to invite the Secretary of State to procure a witness summons or not to invite the panel to direct the Secretary of State to do so, that would be a powerful factor against the claimant’s challenge to the decision.  It is therefore necessary to consider their conduct.
62.	They resisted the Secretary of State’s application for an adjournment in November in the hope that the Secretary of State would not be able to proceed because Ms Langhorne had apparently indicated an intention to withdraw her allegations.  Moreover when, shortly before the hearing, they heard that Ms Langhorne had said that she would not attend, they did not invite the panel to refuse to accept the hearsay evidence until the Secretary of State had sought to procure a witness summons but agreed to the hearing proceeding.  There is undoubted force in the point that tactically any competent advocate representing the claimant might well conclude that it would be in the claimant’s interest to press for the hearing to proceed without Ms Langhorne in the hope that it might be possible to persuade the panel to exclude the hearsay evidence or to give it little weight.  I agree with Kennedy LJ that it can in one sense be said that the present proceedings are little more than an attempt to explore the other alternative which was then available.
63.	However, I do not for my part think that it would be just to dispose of this appeal on that basis.  I agree that neither the Board nor the Secretary of State can be criticised for not seeking a witness summons as at 20th December but, for the reasons given earlier, they can be criticised for not appreciating the position and acting differently earlier.  There is no evidence that, unlike the Secretary of State or the Board, the claimant’s solicitors appreciated the position earlier and made a tactical decision to keep quiet about the options open to the Secretary of State or the Board.  If there were, I would take a different view, but it seems to me to be more likely than not that no one, including the claimant’s solicitors, was aware of the true position at the time.  In these circumstances, it would to my mind be unduly harsh to decide this appeal on the basis that the claimant’s solicitors made a tactical decision at the time from which they should not be allowed to resile.  It could equally be said that the Secretary of State earlier made a tactical decision not to seek a witness summons, whereas it appears likely to me that the true position is that both parties were unaware of the true legal position.   
64.	The second point involves a consideration as to what would have happened if a witness summons had been issued.  Kennedy LJ has observed that Ms Langhorne might have been prevailed upon to attend but that she would probably refuse to testify; that if she did agree to testify she would be very unlikely to repeat her allegations against the claimant and, if she distanced herself from them, that they would add little to what the Board already knew from the documentation to be her position.  
65.	For my part, I do not think that it would be right to speculate as to what would or might have happened if Ms Langhorne attended.  Until mid-December neither the Secretary of State nor the panel suggested that there was no point in seeking her attendance.  On the contrary, she was regarded as an important witness, as the letter of 9th December made clear.  She was indeed an important witness and it seems to me that every reasonable effort should have been made to procure her attendance.  If she did not attend, consideration would have had to be given as to what steps to take and it may well be that it would have been appropriate to proceed as the panel did.  On the other hand, if she did attend, the appropriate course would have depended upon the circumstances.  She might have said that her allegations were true, as she had to the police, or she might have said that they were not, in which case the panel would have had to decide how best to proceed.  They might have accepted that they were not true or they might have nevertheless held that they were.  I do not think that it is right for us to speculate on that question.
66.	In my opinion this is a case in which, as everyone appreciated at the outset, justice required that Ms Langhorne should if possible give evidence for the Secretary of State with the claimant having an opportunity to cross-examine her.  All reasonable steps should have been taken to achieve that end.  If the Secretary of State and the panel had appreciated the true legal position, those steps would have included the issue of a witness summons.  What would have happened thereafter would have depended on the circumstances.
67.	For these reasons I would allow the appeal, quash the decision of the Board and direct a new hearing.  I would add that this situation could not happen in the future.  It has to my mind arisen because of the failure of all those concerned, including I think, not only the Secretary of State and the Board, but also the claimant’s solicitors, to appreciate the true legal position.  In the future, it will be clear from this case what the legal position is no-one will be able to rely upon their ignorance.  Finally, I stress that in all respects other than those set out above I agree with the reasoning and conclusions of Kennedy LJ.        
Lord Justice Wall: 
68.	I have had the opportunity to read in draft the judgments of Kennedy and Clarke LJJ. I find myself in agreement with the judgment of Kennedy LJ, and would have been content to adopt it as my own. However, as Clarke LJ takes a different view on the failure of the Secretary of State to obtain a witness summons to compel the attendance of Ms Langhorne at the hearing before the Board on 20 December 2002 and / or 6 January 2003, I need to explain my reasons for coming to the conclusion that this appeal should be dismissed.  Like Clarke LJ, I gratefully adopt Kennedy LJ’s recital of the facts.
69.	During the course of argument before us, the central issue for our decision was identified by reference to paragraph 57 of the judgment of Keene LJ, giving the leading judgment in this court in the case of R (Sim) v Parole Board [2003] EWCA Civ 1845. Both Kennedy and Clarke LJJ have set out the passage. I will, accordingly, only cite the last two sentences, in which Keene LJ said: - 
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.
70.	For the claimant, Mr. Fizgerald QC argued that if the instant case did not fit Keene LJ’s dictum in Sim it was difficult to envisage one which would. Fairness, he submitted, required that the admissibility of Ms Langhorne’s evidence depended upon her attending the hearing.  It was a necessary part of securing the interests of justice that the State take appropriate measures to ensure her attendance. 
71.	In my judgment, these propositions need to be examined with some caution. The issue of fairness cannot be divorced from the function which the Board has to perform.  Although the issue was whether or not the claimant had raped Ms Langhorne, the Board was not conducting a criminal trial. As Sir Thomas Bingham MR (as he then was) said in R v Parole Board ex parte Watson [1996] 1 WLR 906 at 916H, in the passage cited by Kennedy LJ in paragraph 28 of his judgment, the Board had to balance 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 such injury. In the final balance, however, as he said, the Board is bound to give preponderant weight to the need to protect innocent members of the public against any risk of significant injury. I respectfully adopt that analysis.
72.	Against that background, it is in my judgment manifestly correct that, in conducting a hearing such as the present, the Board should examine all  the available evidence. Much of that evidence in an inquiry of this nature will, inevitably, be hearsay. It will be necessary for the Board carefully to assess that evidence, and give it such weight as is commensurate with the Board’s assessment of its reliability. The Board’s overall responsibility is to act fairly and to reach a reasoned conclusion which is sustainable on the evidence. 
73.	Whilst Kennedy LJ’s judgment in the instant case has clarified the existence of the Board’s power to require the Secretary of State to issue a witness summons to compel the attendance of a witness at a hearing before it, I do not believe that the failure to exercise that power in the instant case has caused injustice to the claimant; nor would I wish, speaking for myself, to give any encouragement to the concept that the issue of a witness summons to compel the attendance of an unwilling witness at a Parole Board should become routine. These are all matters, it seems to me, which will have to be decided on a case by case basis.
74.	Furthermore, in my judgment, it is not for this court to tell the Board how to go about its business, save in so far as it may decide that any particular decision reached by the Board is unfair or otherwise offends the criteria rendering it susceptible to judicial review. The Board is chaired by a judge (in the instant case a circuit judge who sits exclusively in crime) and two experienced members, one of whom is a psychiatrist.  In the wider public interest of protecting innocent members of the public they must, in my judgment, be given a wide discretion over the evidence they receive, provided always that their procedures are fair and the reasons given for their decisions are sound.
75.	The principal reason why, speaking for myself, I am cautious about the wider use of witness summonses in cases such as the present is the risk that the threat of being compelled to attend to give evidence may be used by a prisoner to intimidate a victim. I am not, of course, saying that this happened in the instant case, but it is not difficult to imagine circumstances in which it could, particularly if the victim was a vulnerable adult or a teenage child.  
76.	This leads me to the Board’s approach to the evidence before it in the instant case.  The Board adopted the approach identified in the speech for the majority by Lord Nicholls of Birkenhead in the well known case of Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 (Re H). Kennedy LJ has cited the passage at [1996] AC 563 at 586, in which Lord Nicholls deals with the manner in which the court in care proceedings should approach the civil standard of proof, namely 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. It is apparent that the Board faithfully (and in my judgment correctly) applied this test.
77.	In my judgment, however, what I may call the Re H approach has a broader relevance to the instant case than a simple application of the standard of proof.  In care proceedings under Part IV of the Children Act 1989, a local authority has to establish what have become known as the “threshold” criteria under section 31(2) of the Act. The court has to decide whether a child has suffered or is likely to suffer significant harm attributable to parental care or lack of it, and in order to make an assessment that the child is likely in the future to suffer significant harm, the court must make findings of fact upon which it can properly base that assessment. If the factual substratum is insufficient to make an assessment of significant harm, the threshold criteria will not be reached and the child cannot be taken into care.   
78.	Although the Board’s decision letter refers only to the dicta of Lord Nicholls at [1996] AC 563 at 586-7, it seems to me plain that the way in which the Board went about its task followed the overall approach laid down in Re H namely (1) it looked at the totality of the evidence; (2) it assessed that evidence critically in order to decide what facts were established on the Re H balance of probability / standard of proof test; and (3) it then, on the basis of the facts it had found, made its assessment as to whether or not it was any longer necessary for the protection of the public for the claimant to be detained. There is no rationality attack on the reasons, nor in my judgment could there be. The evidence before the Board and its findings upon it plainly warranted the conclusion it reached. 
79.	Against that background, does the failure to issue a witness summons for Ms Langhorne’s attendance vitiate the process by rendering it unfair? Speaking for myself, I do not think so. Her attendance would, of course, have given the Board an opportunity to assess her credibility under cross-examination. However, we can, at best, only speculate about what would have happened had a witness summons been obtained. She might have attended: she might not. Had she attended, she might have confirmed her allegations. On the other hand, she might not. Had she denied that she had been raped, that would not have been the end of the matter: the Board would have had to assess the credibility of her denial against her previous statements to Ms Saddington and to the police, and all the circumstances of the case. 
80.	In examining the question of fairness in this context, it is, I think, necessary to set out the Board’s actual findings. In paragraph 4 of its reasons addressed to the claimant, the Board identifies five points in favour of the claimant. They are: -
“(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.”
81.	The reasons then continue in paragraph 5: -
“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.
82.	Speaking for myself, I am impressed by the evidence of Sylvia Pettit and Marion Saddington, which Kennedy LJ has set out in paragraphs 3 and 10 of his judgment. Both of these witnesses gave evidence to the Board and were cross-examined. Ms Petit had, of course, known the claimant for a long time, and Ms Saddington was able to give evidence of her interview with Ms Langhorne. In my judgment this was evidence, which was not only admissible, but evidence upon which the Board was entitled to rely.
83.	It is also, in my judgment, very important to look at the manner in which the Board, in paragraph 7 of its reasons, took into account the allegations of domestic violence against the claimant, which did not depend on Ms Langhorne’s oral evidence, but on Ms Pettit’s observations and the claimant’s response to her enquiries. In paragraph 7 of its reasons letter, the Board says:
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.  
84.	Whilst I accept that the Board’s findings in paragraph 7 of its reasons may well not, on their own, have warranted the claimant’s continuing detention, they seem to me highly relevant to the fairness issue. In my judgment they go directly to the question of whether or not the absence of Ms Langhorne’s oral evidence vitiated the fairness of the proceedings.  
85.	The Board’s finding is that the claimant’s behaviour was “a classic example of abusive behaviour in domestic situations”. Ms Langhorne’s conduct, as identified in paragraph 5 of the reasons was itself typical of a women involved in a situation of domestic violence.  The use of the word “classic” in the penultimate sentence of paragraph 7 of the Board’s reasons demonstrates that the Board (which had a psychiatrist as one of its members) had fully taken into account Ms Langhorne’s unwillingness to give evidence, her concern that the claimant had been returned to prison because of her allegations and her enduring expression of love for the claimant. 
86.	These findings are all, once again, “classic” examples of the behaviour of a woman in an abusive relationship.  Thus, in my judgment, whatever she may have said had she attended the hearing of the Board to give evidence, it would still have been open to the Board to find the allegation of rape established. The Board would still have had to look at the surrounding circumstances and the evidence of Ms Pettit, Ms. Saddington and the claimant. 
87.	To put the matter another way, even if Ms Langhorne had attended and (to put the case at its highest from the claimant’s point of view) had denied she had been raped, it would nonetheless have been open to the Board, on the totality of the  evidence, to disbelieve her denial. As I have already said, this was not a criminal trial in which the rules of criminal evidence and procedure applied. 
88.	For my part, therefore, I cannot see Ms Langhorne’s presence before the Board as crucial to its determination of the rape allegation, and it follows that I do not think the fairness of the process vitiated by her absence. The Board, of course, records that it had not had the opportunity to hear Ms Langhorne cross-examined. It took that point fully into account. In my judgment, therefore, there was not only abundant evidence upon which the Board could reach its conclusion, but it was not unfair to reach that conclusion without Ms Langhorne giving evidence. 
89.	My second reason for thinking the process fair is more prosaic, and fully covered by Kennedy LJ in paragraphs 35 to 37 of his judgment. The claimant’s solicitor made a professional judgment on 20 December 2002 to which she appears to have adhered on 6 January 2003. That decision was not to seek an adjournment or to ask the Board to issue a witness summons or cause the Secretary of State to do so. 
90.	The claimant clearly wanted to proceed.  No doubt, on one view, the decision to go ahead without Ms Langhorne being summoned was a gamble.  On the other hand, it has to be said that to insist on her attendance was equally a gamble, if not more so.  If her oral evidence was convincing, that would have been the end of the claimant’s case. In these circumstances, it seems to me that the decision to proceed was a perfectly proper one, both from the perspective of the claimant and the Board.  The claimant’s advisers obviously thought they were better off without Ms Langhorne’s presence. The fact that they may, possibly, have been wrong does not make their decision to proceed without her wrong, nor, in my judgment, does it render the procedure unfair 
91.	The consequence of the claimant’s decision to proceed on 20 December, however, must be that it is too late now for him and those advising him to cry foul. He took his chance. The procedure adopted by the Board was manifestly fair: Ms Pettit and Ms Saddington were both called and cross-examined: the claimant was able to give evidence, and the Board has given careful, indeed immaculate reasons for its decision. 
92.	Kennedy LJ’s judgment clearly sets out the law and what should be the practice in relation to the issue of witness summonses in cases before the Parole Board (an analysis with which I respectfully agree) I do not, however, for the reasons I have attempted to give) share Clarke LJ’s view that the failure by the Secretary of State to appreciate the true position has resulted in unfairness in the instant case. 
93.	Furthermore, I would be concerned, for the reasons I have given in paragraph 75 of this judgment, if the message from this case were to be that alleged victims of sexual or physical assaults by prisoners on licence were, as a matter of routine, to be compelled to give evidence before the Parole Board. Whilst the procedure for applying for witness summonses is now clear, each case must, in my judgment, be assessed on its particular facts. 
94.	In my judgment, Elias J was right to dismiss the application for judicial review and I would, accordingly, dismiss this appeal.

Order:  Appeal dismissed.  Detailed assessment of the appellant's publicly funded costs.  Application for leave to appeal to the House of Lords refused.
(Order does not form part of approved judgment)