Case No. CO/2024/ 2007
Neutral Citation Number: [2009] EWHC 663 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Date: Thursday, 12 February 2009
 
B e f o r e:

HIS HONOUR JUDGE PELLING QC
(sitting as a High Court Deputy Judge)
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Between:
THE QUEEN ON THE APPLICATION OF ANTHONY HEADLEY
Claimant

v

THE PAROLE BOARD
Defendant
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Computer‑Aided Transcript of the Stenograph Notes of
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Mr A Blake (instructed by Malnas Clarke) appeared on behalf of the Claimant
Mr P Nicholls (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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J U D G M E N T

1.	THE DEPUTY JUDGE:  This is the substantive hearing of an application for judicial review commenced in February 2007.  In substance it was concerned originally with whether a decision of the Parole Board taken on 8 December 2006, by which parole was refused to the claimant, was arrived at by procedurally fair means and/or was lawful.  
2.	       Permission to bring the proceedings was granted by Calvert-Smith J on 19 June 2007.  The basis of the challenge was that the Parole Board acted on hearsay evidence in relation to events that led to the claimant's recall to prison, without giving the claimant the opportunity to test it by cross-examination.  After permission had been granted the Parole Board held a further review which resulted in a further refusal of parole by a decision letter, dated 19 June 2008. 
3.	        On 11 November 2008, a consent order was made in these proceedings by which the claimant was given permission to serve amended grounds in relation to the 2008 decision with other consequential directions, including a direction that the substantive hearing is fixed for the first available date after 12 January 2009.  This is that hearing.
4.	The factual background in short is that the claimant is now aged 60 years.  In 1969 the claimant was convicted of wounding with intent.  He was sentenced by Eveleigh J, as he then was, to life imprisonment.  In his sentencing remarks the judge said: 
"I am going to deal with you in such a way that will enable that help to be given to you.  In the meantime, I think that society has to be protected against you and your activities because you are a danger, and I think also that you have got to be protected against yourself 
... 
… I will pass such a sentence which will enable the authorities to have another look at your case to see how you are getting on. And I emphasis that.  On the charge of wounding with intent, you will be sentenced to a period of life imprisonment.  I make a recommendation that your mental condition should be further investigated in an appropriate establishment." 
The circumstances that led to the wounding charge were that the claimant had a relationship with a Miss Croft, which by August 1968 had broken down.  There was a child of the union with whom he had maintained contact.  In November 1968, while visiting the child and having taken an elicit drug, the claimant apparently suddenly, and without warning, stabbed Miss Croft in the neck with a commando knife.  Following his arrest he is said to have remarked: 

   "I hope she dies. Then you will be able to charge me with murder.  I missed what I was aiming for. I was aiming for the back of her neck. That is what commando knives are for.  I missed because she turned.  I will get about 4 or 5 years unless they put me in a nuthouse and that is unlikely". 
    When cautioned and charged the claimant apparently replied,
   ”I admit I did it”.
5.	      Obviously, from the chronology that I have so far set out, these events took place some 40 odd years ago.  On 24 May 1976, the claimant was released on licence subject to conditions, the details of which do not matter for present purposes.  On 10 May 1990, the licence was varied by omitting the conditions. On 13 May 2005, some 19 years after his first release on licence, the claimant was recalled to prison.  The offence which led to his recall was possessing a firearm without a certificate and possessing a firearm when prohibited to do so by reason of having been sentenced to life imprisonment.  
6.	       Although the copy of the indictment at page 112 of the bundle suggests he was sentenced to 21 months on each of the two counts, I am satisfied that that is almost certainly incorrect and that the order on page 111 in the bundle records correctly that he was sentenced to a total of 27 months with the third count being concerned with the possession of an air pistol. The two other counts, to which I have referred, concern the possession of a .22 BSA air rifle.  
7.	       A custody notice prepared for the Magistrates' Court, following the events to which I have referred, suggested wrongly that the claimant had been convicted of the murder.  That error, whilst excusable, did not have any role in either of the decisions of the Parole Board, other than the Board attributed much of what they perceived to be the claimant's anger to that error.  
8.	       The only explanation given by the claimant for his offences is that contained in a pre‑sentence report where he is recorded as saying:
	 
9.	   "Mr Headley maintains that himself and Mrs Headley sat in the car whilst having a discussion in relation to finance and possessions. He alleges that Mrs Headley commented ‘I could put you back inside any time’. Mr Headley tells me he was shocked when he read Mrs Headley’s statement indicating she had been frightened whilst they were in the car together. Mr Headley alleges that he has been in possession of air rifles for nearly 30 years in connection with his hobby of shooting rabbits or pigeons. He also alleges that Mrs Headley bought him two guns many years ago..." 
10.	        It is also apparently the case, according to the pre‑sentence report from which I have just quoted, that Mrs Headley confirmed in her statement to the police in 2005 that Mr Headley had never been violent to herself or the children through her marriage, but that he suffered mood swings which made him unpredictable.  Following the expiry of the claimant's sentence for the possession of the firearms, the claimant remained in prison because he had been recalled, as I have described. 
11.	       As was required by the relevant statutory procedure there was a hearing before the Parole Board to determine whether the claimant should be released again on licence.  This resulted in the first decision of the Parole Board set out in a decision letter, dated 8 December 2006.  It was that decision letter which, as I have said, led to the commencement of these proceedings.  In paragraph 4 of that letter the Parole Board said as follows:
"Your progress in prison was such as to justify your release on licence on 24th May 1976. You are now 58 years of age and you remained on licence until April 2005.  The incident which led to your recall occurred on 8th April 2005.  You arranged to meet your estranged wife. She claims that during the meeting you opened your jacket and revealed a firearm which you waved around.  Later, whilst your ex-wife was at the police station she claims that you telephoned her and told her if you had wanted to you could have ‘blown a hole the size of a dinner plate in her’. Until that incident you had not committed any offences during the term of your licence apart from an offence of indecent exposure in 1979. However, following your divorce, you had already made a number of threatening calls to your ex-wife according to her."  
12.	       It is this which gives rise to the application before me.  It is common ground that the evidence to support that conclusion, or those expressed views, consisted of the repetition in various reports placed before the Parole Board of what it is alleged that the claimant's wife had asserted at the time of the claimant's arrest.  The charges, which were formulated on the basis of what it is alleged the claimant's former wife had asserted, were withdrawn at a later date without ever the claimant appearing before the court.  Thus, the evidence that is relied upon as supporting the assertion, set out in the paragraph to the letter to which I have just referred, was not tested in any way at the oral hearing before the Parole Board, either in 2006 or at the later hearing in 2008.  
13.	       It is clear to me at least that the material in paragraph 4 of the report played a substantial part in the decision arrived at in 2006, because at paragraph 6 of the decision letter the Board said this: 
"Since your recall to prison you have refused to speak to most staff, unless you want something, with the exception of Senior Officer Mullins. You have declined to attend appointments or to comply with any assessments. You suffer from bowel cancer but have refused treatment.  Save for the nature of the offences there are similarities between your 1968 offence and your current offences, namely the lack of emotional control following the break up of a relationship. It is not surprising, therefore, that the OASys assessment shows you as being of high risk to known adults." 
   Again at paragraph 7 the Board said this: 
"The panel recognises that there is an error in your Custody Notice as it shows you as having been convicted of murder in 1973 and acknowledges that you have no conviction for murder.  However the panel considers that your present offences and the surrounding circumstances meant that your recall to prison was fully justified." 
 At paragraphs 8 to 9 the Board said this: 
"8. Clearly work needs to be done in relation to your emotional controls and cognitive skills. 
9. In these circumstances the panel consider that your risk of causing danger or serious harm to members of the public remains too high either to direct your release or to recommend your transfer to open conditions." 
    Finally at paragraph 12 the Board said this: 
"Having regard to your attitude before the panel and to the remaining evidence including your OASys assessment the panel is satisfied that, although such work cannot be done within HMP Bullingdon, you need to carry out further work on relationships and anger management before your level of risk can be considered to be sufficiently reduced to enable you to progress."
14.	       The OASys report referred to in the decision letter refers to the allegations made by the claimant's ex‑wife as if they were true, at any rate in some parts.  So, for example, at paragraph 2.1 at page 132 of the bundle where, under the heading “Brief offence(s) details”, the following appears: 
"Mr Headley arranged to meet his ex‑wife in a car park in Aylesbury and during this meeting he produced a pill from his jacket pocket and allegedly waved it in her face.  Mrs Headley went straight home and called the police.  The police apprehended him in the car park and found the pistol (air gun) and other weapons all either air pistols or air rifles." 
       To similar effect is the box which appears beneath it at paragraph 2.2 where under the heading "Did any of the offence(s) involve any of the following" there is a tick against ”Carrying/use of a weapon”, there is a tick against “Violence or threat of violence/coercion”, and a tick against “Excessive use of violence/sadistic violence”.  Finally at page 138 of the bundle at paragraph 617 under the heading “Provide evidence for ratings above and identify relationship issues contributing to risks of offending and harm.  Please include any positive factors”, there is a rehearsal, yet again, that: 
    “Mr Headley was recalled to custody after an incident in which he is alleged to have waved around a hand pistol, (later found to be an air pistol) in front of his wife. Theresa Headley when she met him at a prearranged place in her car. He had been calling his wife on a number of occasions after they had separated in 2004. On this occasion he had said he only had a few weeks to live as he had cancer. He stated to his family that he attempted suicide. This appears to have been a ploy to get her to meet him.  Mrs Headley stated to police at the time that she was very distressed and believed he was capable of carrying out the threat he made to kill her.”
15.	       After the commencement of these proceedings there was, as I have said, a further review by the Parole Board.  The decision letter in relation to that review is dated 19 June 2008.  Paragraph 4 of that report contains a summary of the 1969 offence.  Paragraph 6 of the report again contains a detailed summary of the allegations made by the claimant's wife in 2005, albeit couched by reference to the word "alleged", which again had not been the subject of any challengeable evidence before the Tribunal.  
16.	       The report then says at paragraph 6 the following: 
"On 8 April 2005, your estranged wife made a complaint that you had pulled a gun on her.  She alleged that she had received threatening and silent telephone calls and that in October 2004, you had called to say that you had cancer and made unpleasant remarks about her to your daughter.  On 28 March she had come to a public house and given you £20 cash when you were short of money.  You met there again on 8 April when you handed back £20.  She alleged that, when you were in her car, you had pulled out a pistol from your jacket and made threats of using it on yourself or the police.  When she attended the police station you telephoned and it was alleged that you had commented that you could have ‘blown a hole in her’.  You were finally located in a car park.  A black metal air pistol was under the front seat and an air rifle with a telescopic sight was in the boot.  You denied that you had produced any gun when you had met her or made any threats, but admitted that the weapons found in the car were yours. You maintained that she had been unaware of your new relationship until she spotted Jai in your car and had then made up these allegations.  Charges relating to them were not proceeded with but you were convicted of offences of possessing firearms without a certificate and possessing a firearm when you were prohibited and received sentences totalling 27 months’ imprisonment." 
    Paragraph 7 of the report rehearsed the conclusions reached by the Parole Board in 2006 in these terms:  
"The panel of the Parole Board that considered your recall noted that although at least one senior officer and a retired prison governor spoke well of you. There was a similarity between the index offence and the allegations made about your behaviour that had led to your recall in that both displayed a lack of control following the break up of a relationship.  Furthermore, you had refused to speak to some members of staff, obtain assessments or receive treatment for cancer. It concluded that you needed to address your emotional control and cognitive skills and that further work was required on relationships and anger management." 
The report then notes the outstanding application for judicial review and then says this: 
"However on the version that you gave to the panel conducting the present review, you said that you had the weapons in your possession for many years, apparently in contravention of the prohibition imposed upon you and apparently in spite of advice from the retired prison governor who had advised you to keep well away from guns. You were carrying them around, readily to hand, in your motor vehicle."
    The Parole Board's conclusion at paragraphs 10 to 11 was as follows:  
"Although report writers had not expressed a view about them, the panel identified risk factors that arose in consequence of the index offence, these being use of drugs, use of violence, use of weapons and relationships. There had been no examination of your psychopathic traits but, on the other hand, the panel noted that there had been no concerns about your conduct for a substantial number of years after you had been released. Nevertheless, the circumstances of your possession of the weapons that were the subject of the recent court proceedings raises concerns about your thinking skills and these concerns were fortified by your attitude to prison staff and probation officers to whom you have declined to talk.  Accepting that the court did not resolve issues alleged between you and your second wife, there may be links between the index offence and the conduct that led to your recall that have yet to be explored.  Your conduct also suggested manipulative behaviour, particularly if you had falsely reported the state of your illness. Despite your problems, it was clear that you were not prepared to co‑operate with probation services at the present time and there appeared to be logical reason for these negative attitudes. The consequence is that plans for your release have yet to be vetted by those who would be responsible for your supervision in the community. 
11. There was no evidence that you had engaged in the offending behaviour work suggested by the panel at your last review and little evidence since then, apart from your advancing age, to suggest that there had been a reduction of the risk of harm that you posed to life and limb."  
       There is, as will be noted, no reference to the claimant's explanation of the events giving rise to his recall, as set out in the pre-sentence report, even though that could have been tested at the hearing before the Parole Board.  The claimant's case is that the Parole Board erred in receiving hearsay evidence of the allegations made by the claimant's ex‑wife in 2005.  These allegations were so fundamental to the Parole Board's decision in both 2006 and 2008 that he should have been given the opportunity to test it by cross‑examination at either the first or second of these two oral hearings; and that the Parole Board plainly based its decision in 2008 on the assumption that what it was said the claimant's ex‑wife had said was true.  
       It is said that the 2008 review was tainted by the same erroneous approach as applied to the 2006 report, because the claimant's ex‑wife's supposed allegations were rehearsed at length in the report.  At paragraph 10 the Parole Board again referred to “links between the index offence and the conduct that led to your recall that have yet to be explored", which, it is said, shows that in truth the account was taken of the allegations supposedly made in 2005 by the claimant's wife.  Paragraph 8 refers in terms to the most recent OASys report concluding that the claimant was a medium risk to a known adult, which, it was accepted by the defendant's counsel, could only be a reference to the allegations made by the claimant's wife in 2008.  
       The legal framework is a relatively straightforward one. In deciding whether to release the Parole Board is required, by section 28(6) of the Crime (Sentences) Act 1997, to be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.  It is the role of the Parole Board to carry out what in effect is a risk assessment.  It is common ground that in relation to the reception of hearsay evidence the law was authoritatively stated in R v (Sim) v the Parole Board [2004] 2 WLR 1170, where at paragraph 52 Keene LJ said that there was no dispute that the Parole Board could receive hearsay evidence.  At paragraph 54 Keene LJ rehearsed the decision of the European Court of Human Rights in Hussain v United Kingdom [1996] 22 EHRR 1 where that court had held that: 
 “…where a substantial term of imprisonment may be at stake as the result of a Parole Board decision and where 
’characteristics pertaining to his personality and level of mentality are of importance in deciding on his dangerousness, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representatives and the possibility of calling and questioning witnesses.’"  
       Keene LJ rejected the suggestion that the Parole Board was precluded from acting on evidence unless a witness with first‑hand knowledge was called, and that evidence was an issue to be determined by national courts rather than by the European Court of Human Rights.  The judge then quoted from a decision of Latham LJ in McKeown v Wirral Borough Magistrates’ Court [2001] 2 Cr App R 12, to the effect that the procedural task of a judge considering a bail application was, in essence, to ensure that the defendant had a full and fair opportunity to comment on the material relied upon, before saying at paragraph 57: 
"That passage seems to me to be generally applicable to proceedings before the Parole Board when it is assessing risks, especially bearing in mind that recall decisions are not criminal proceedings within the meaning of Article 6: R (West) v Parole Board [2002] EWCA Civ 1641; [2003] 1 WLR 705. Merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or present the Parole Board taking such evidence into account.  It should normally be sufficient for the Board to bear in mind that the 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 submitted that the penultimate sentence of that paragraph is engaged by the facts of this case.  The defendant, however, placed some reliance on R (on the application of Brooks) v The Parole Board [2004] EWCA Civ 80.  That case was concerned with an application for judicial review of a decision of the Parole Board.  That on the facts was significantly different to the present case.  That case was concerned with an allegation of rape which the victim did not give evidence about before the Parole Board.  Evidence instead was given by witnesses who gave evidence of the victim making the allegations to them.  The Parole Board admitted this material whilst making it clear that it was admitted only for a limited purpose, namely that of showing the allegation had been made.  At paragraph 21 of the lead judgment Kennedy LJ says: 
"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 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." 
       It is fair to say that there has been no evaluation of the assertions concerning what was alleged by the claimant's ex‑wife in 2005, at any stage, in any of the letters I am now considering.  At paragraph 28 Kennedy LJ quoted the well‑known statement of principle formulated by Sir Thomas Bingham MR, as he then was, in R v Parole Board, ex‑parte Watson [1996] 1 WLR 906 at 916H, namely: 
"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 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."  
Kennedy LJ then went on to say: 
"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 that 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." 
At paragraph 37 Kennedy LJ then said this: 
"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 the 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." 
       The point being made here is that the claimant in that case was given an opportunity to decide how to proceed, namely by seeking an adjournment in order that the appropriate witness could be produced, or at least an attempt made to produce the appropriate witness, or to proceed without such evidence. The choice was made to proceed without such evidence.  Here, although there is no factual formal evidence going to the point, it is said that whilst the claimant's ex‑wife was not due to give evidence police officers, who recorded her allegations were, but in the end were not produced.  This is said to have only become apparent on the morning of the hearing.  
      I was also told that it was agreed at the second hearing before the Parole Board that the Parole Board was to proceed on the basis that the allegation made by the claimant's wife was to be left out of account.  There is, as I say, no evidence to support this.  Since the matter was raised at a late stage this morning the counsel for the defendant had no realistic opportunity to obtain instructions in relation to it.  It is, therefore, something which I prefer to leave out of account proceeding simply on the basis that there was no first‑hand evidence before the Panel of the allegations made by the claimant's wife to police in 2005.  
       It was conceded at the outset of the hearing by counsel for the claimant that that first decision was relevant only as background because reference was made to it in the 2008 decision.  I was thus expressly advised not to make any order in relation to that decision.  I proceed on that basis.  
       The claimant's case is that the Board was based in truth on what the claimant's wife is alleged to have told police in 2005.  He says that that must be so since the question the Board had to ask itself, namely whether the claimant's continued detention was any longer necessary for the protection of the public, was one that could be answered only in the way the Parole Board chose to answer it by reference to the evidence of what the claimant's ex‑wife had said in 2005.  In essence it is said that the only evidence that the claimant was at risk to anyone was that material.  
       It was further submitted that if, as the defendant alleged, the claimant's ex‑wife's comments had not been taken into account, then the decision not to release was irrational since there was no evidence from which it could properly be inferred that he was a continuing risk other than that evidence.  Either way it was submitted that the only appropriate course was to quash the 2008 decision and to direct a fresh hearing before a differently constituted panel at the Parole Board.  
       The defendant's submission was that the 2008 decision should be read as a whole, and that read as whole it was clear that the allegation, as made by the claimant's ex‑wife, was not the fundamental basis on which the Board proceeded.  I accept the submission of the defendant that the 2008 decision letter must be read as a whole, so read paragraph 1 rehearses the test to be applied and the effect of the decision reached; paragraph 2 says that the Board considered all of the documents before it and I identified some additional material that it relied upon as well; the documents relied upon rehearsed the allegation made by the claimant's ex‑wife, however, on this occasion prefaced more usually at various relevant points by the word "alleged"; paragraph 3 of the letter sets out uncontroversial chronology; paragraph 4 summarises the index offence and the claimant's prior criminal record; paragraph 5 contains further chronology; and it is in paragraph 6 that the events of 2005 are rehearsed.  
       The defendant's counsel drew my attention to the reference to the use of the word "alleged" in that paragraph in relation to the allegations made by the claimant's wife.  However, unlike Brooks there was no attempt in this case by the Board to analyse the allegation, nor was there any indication in this case of what, if any, purpose was served by referring to the allegations in the body of the letter.  Had that Board not relied upon the allegations at all, then it could, with ease, have said so, likewise if they were referring to “for a limited purpose”, then that could have been identified with relative ease.  However, but there is no such analysis of the role played by the material rehearsed in that paragraph.  No reference at all is made to the claimant's own explanation as summarised in the pre‑sentence report, to which I have referred above.  
       In paragraph 7 there is a reference to the 2006 OASys report, which concludes that the claimant posed a high risk of harm to a known adult. A conclusion that could only have been reached by reference to the allegations made by the claimant's ex‑wife.  Then it rehearses a summary of the 2006 decision emphasising the conclusion that: 
"There was a similarity between the index offence and the allegations made about your behaviour that had led to your recall in that both displayed a lack of control following the break up of a relationship."   
       Earlier in this judgment I rehearsed what the Board continued to say in paragraph 7 concerning the judicial review proceedings.  This was relied upon by the defendant as illustrating clearly that the fundamental reason for the Board reaching the decision it reached was to do with the fact that the claimant had for many years, post his conviction in 1969 and his subsequent release, firearms in breach of applicable law.  However, with respect, I do not understand how possession of air weapons prior to the index offence is relevant to a parole risk when the offence occurred some 40 years ago and did not involve firearms.  Likewise I do not see how after release of so many years that the matters referred to prove the existence of a risk unless at least some account is taken of the ex‑wife's allegations to the contrary.  Possession of the weapons over many years without any threat to anyone, if anything, points to the absence of risk, rather than existence of it.
17.	       I have already drawn attention to the fact that the opening line of paragraph 8 referred to the most recent OASys assessment, concluding that the claimant's risk of serious harm to a known adult was now assessed as medium.  It was accepted by counsel for the defendant, inevitably in my judgment, that this conclusion could only have been arrived at on the basis of the allegation made by the claimant's ex‑wife being accepted by the author of the assessment.  Paragraph 8 of the letter contains a reference to the fact that the claimant is forced to use a wheelchair, but no account appears to have been taken of that factor, or of the opinion of her psychiatrist who examined the claimant to the effect that he was apparently not fit to fire a gun.  The paragraph records a history of non‑co‑operation with relevant professionals. 
18.	       At paragraph 10 there then appears the reference to the index offence and the conduct which led to the claimant's recall having yet to be explored.  There is a reference also, much relied upon by the defendant, to the exacerbating factors identified in relation to the index offence being the use of drugs, use of violence, use of weapons in relationships as being reasons which of themselves give rise to a conclusion that there is a continuing risk.  
19.	       In my judgment, the sentence which has given rise to such controversy set out within paragraph 10 is very unclear as to its effect.  However, in combination with the reference earlier in the report to the allegations made by the claimant's ex‑wife and to the OASys report in paragraph 8, it leads me to conclude that the Panel were influenced in their decision by the allegations made by the claimant's ex‑wife.  As I see it, there could be no other basis on which it could be concluded that a physically frail wheelchair-bound 60-year old could conceivably pose a threat other than by reference to those allegations.  
20.	       Although the Panel referred to the risk factors arising from the index offence in the opening lines of paragraph 10, and also record the fact that they were committed a substantial time ago, it seems to me that in reality if those were the matters that were relied upon as reaching the conclusion that there was a continued risk, then they cannot have given much, or any, weight to the length of time that had elapsed since the index offence had been committed.  Nor have they considered the fact that the claimant had led a substantially blameless life in the community for nearly 20 years prior to his recall with no record of any threat of any sort being made to anyone, other than as alleged by the claimant's ex‑wife in relation to the events of 2005.  Thus it seems to me that the Panel in reality was influenced to a substantial extent by the reported allegations of the claimant's ex‑wife.  
21.	      In those circumstances I ask myself whether this is one of those perhaps rare cases referred to by Keene LJ in paragraph 57 of his judgment in Sim.  As I suggested to counsel, and was accepted by both in the course of argument, these questions are highly fact-sensitive.  In each case the question is one to be determined exclusively by reference to the particular facts of a given case.  I suspect the facts of this case are rare, perhaps even unique.  
22.	       However, it seems to me that given that, in particular, the fact that (a) the index offence was committed some 40 years ago; (b) the claimant was released into the community on licence and lived for some 20 years in the community until he was recalled without causing injury or damage to anyone, emphasises the importance of the allegation made by the claimant's ex‑wife.  Given the importance of that allegation, in my judgment the offender ought to have been given the opportunity to test it by cross‑examination, and the failure to afford that opportunity in the very particular circumstances of this case was simply not fair.  
23.	       In light of this conclusion it is desirable that I say little or nothing about the claimant's alternative case.  I say this because I intend to quash the 2008 decision and direct a further review by a panel of the Parole Board differently constituted to that which made the 2006 and 2008 decisions.  It would be for that panel to reach its own conclusions on the facts on the evidence then before it.  It would not be helpful, nor would it be appropriate, for me to comment on allegations of irrationality made more generally in the context of this case, because that would be on the hypothetical basis that the Board reached the 2008 decision by not taking account of the allegations made by the claimant's ex‑wife in 2005, whereas I have concluded that in trial (?) they did. 
24.	       It is also not desirable that I should comment, because as was pointed out, quite rightly by the defendant's counsel, this is a court considering allegations of procedural irregularity, this court is not the Parole Board and it will, as I say, be for the members of the Board determining the renewed application to reach an appropriate decision on the basis of the material before the Panel.
25.	       I make one final point before ending this judgment: the claimant is not present in court, however, I urge him to consider whether, notwithstanding his apparent anger at his predicament, something useful night not be gained in co‑operating with the professionals involved in preparing medical and other reports for the Parole Board's consideration at the new hearing.  
26.	       As it is, I quash the 2008 decision.  I direct a further oral hearing before a panel of the Parole Board not consisting of any person who was a member of either the Panel reaching the 2006 decision, or that reaching the 2008 decision.  In my judgment, it is desirable that the hearing should take place as soon as practicable, but giving sufficient time for the Parole Board to consider what evidence ought to be adduced and in what form, and sufficient time also to enable the relevant reports to be updated. I will therefore hear counsel as to what, if any, directions I should give concerning that issue.
27.	MR BLAKE:  I am most grateful.  Could I have one moment?  (Instructions taken) My Lord, I think the difficulty is that I am sympathetic to the defendant in this respect: one has to consider what reports they will put together and of course I know also there is delay just as there is in this court--
28.	THE DEPUTY JUDGE:  I understand.  That is why I said it has to be practical.
29.	MR BLAKE:  I am really in your Lordship's hands in this respect, because I do not think that the defendants are able to give a time estimate.  I simply would not wish to force one on them.  That would not be practicable.  
30.	THE DEPUTY JUDGE:  There is probably going to be a further review.  It is probably best I say nothing.
31.	MR BLAKE:  “As soon as practicable”. 
32.	MR NICHOLLS:  I am happy with “As soon as practicable”.
33.	THE DEPUTY JUDGE:  Formulate the order on that basis.
34.	MR BLAKE:  I am grateful for the care your Lordship has given in this case.  The only other matter is that he is publicly funded, so I ask for a full assessment.
35.	MR NICHOLLS:  I do seek permission to appeal on the basis that your Lordship's judgment gives rise to the issue about what fundamental means in relation to these sorts of decisions, and how it is to be applied.  I perceive that your Lordship's judgment could give rise to other applications challenging Parole Board decisions in ways, which I will seek to persuade the Court of Appeal, were not contemplated by Sim and Brooks.
36.	THE DEPUTY JUDGE:  I refuse permission to appeal.  I do so on this basis, that the judgment I have given was carefully formulated so as to make clear that it was influenced by the rare, or perhaps unique, factual circumstances of the case.  Thus it seems to me that there is nothing knew that can be derived from the judgment I have delivered, which is a straightforward application of Sim, to those very special facts.
37.	THE DEFENDANT:  Thank you.