QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen
on the application of
|- and -
|(1) Parole Board of England and Wales
(2) Secretary of State for Justice
Sarah Sackman and Conor Fegan (instructed by Parole Board Legal Services) for the First Defendant
Myles Grandison (instructed by Government Legal Department) for the Second Defendant
Hearing date: 18 November 2020
Crown Copyright ©
Mr Justice Bourne:
i) "there was procedural unfairness and failing in the manner or system by which the Parole Board reached its decision, contrary to common law and/or Article 5(4) of the European Convention on Human Rights ("ECHR") requirements of fairness"; and
ii) "the policy or guidance issued by the Parole Board to purportedly govern the treatment of non-conviction allegations in parole reviews does not meet the requirements of fairness to be observed as a matter of common law and/or of Art. 5(4) ECHR".
"(6) The Parole Board shall not give a direction under subsection (5) above with respect to a life prisoner to whom this section applies unless—
(a) the Secretary of State has referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined."
"(3) The Board must, in dealing with cases as respects which it makes recommendations under this Chapter or under Chapter 2 of Part 2 of the 1997 Act, consider—
(a) any documents given to it by the Secretary of State, and
(b) any other oral or written information obtained by it;
and if in any particular case the Board thinks it necessary to interview the person to whom the case relates before reaching a decision, the Board may authorise one of its members to interview him and must consider the report of the interview made by that member.
(4) The Board must deal with cases as respects which it gives directions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act on consideration of all such evidence as may be adduced before it."
"5. Panel decisions must be made objectively, based on (a) the information and evidence provided to the panel and (b) information and evidence obtained as a result of the panel's inquiries and (c) what can properly be inferred from that information and evidence.
6. Panels faced with information regarding an allegation, will have to assess the relevance and weight of the allegation and either:
a. Choose to disregard it; or,
b. Make a finding of fact; or
c. Make an assessment of the allegation to decide whether and how to take it into account as part of the parole review."
"Making an Assessment of the Level of Concern
18. Panels may need to make an assessment of an allegation when the allegation is capable of being relevant to the parole review, but the panel is not in a position to make a finding of fact either because there is insufficient material available to make such a finding on the balance of probabilities, or because it would not be fair to do so. This most often arises when there is information regarding an allegation, but, critically important aspects of the evidence cannot fairly be tested. The allegation and the circumstances around it can form a basis for testing the reliability of the prisoner's evidence. It can be material on which an expert's evidence can be tested. The wider circumstances of the allegation might also give rise to areas of concern.
19. To make an assessment of concerns arising from an allegation, panels will need to decide:
a. What, if any, relevance the allegation has to the parole review; and
b. The weight to attach to the concerns arising from the allegation;
and then form a judgement as to the relevance and weight, if any, to be attached to these concerns, and the impact this has on the panel's overall judgement.
20. If an allegation is relevant to the parole review, the panel will need to form a judgement as to what weight to give the allegation. This will require an examination of the allegation. The following factors can be considered when judging what weight to give an allegation:
a. Source: can the credibility and reliability of the source be assessed and, if so, what is their credibility as a source; were the actions of the source consistent with the allegation; does the source have a motive to act against the prisoner; how contemporaneously was the making of the allegation with the events concerned; has the source's account been consistent? Allegations from a credible source are likely to be given greater weight than allegations from a less credible source.
b. Supporting information: is there other evidence that supports the specific allegation whether from other sources and/or documentary evidence that record the allegation? Allegations that are supported by other information will normally have more weight than allegations that come from a single source.
c. Nature of the allegation: an allegation that is of more serious misconduct is capable of having a greater effect on the panel's risk assessment.
d. Contemporaneity: is the allegation relating to events in recent times or at some time in the distant past? Allegations that relate to more recent times are likely to be more relevant than allegations relating to events in the distant past.
e. Context: does the allegation fit with other information known about the prisoner (which could include convictions or known behaviour including patterns of behaviour or other known allegations) in which case it may have more weight than an allegation that does not fit; and
f. The prisoner's evidence: panels should take account of the prisoner's denial or limited admissions/minimisation of the allegation, and, in doing so, make an assessment of the prisoner's credibility and reliability as a witness.
21. Having analysed the relevance and weight of the allegation, the panel should then reach a judgement about the impact this level of concern has on the parole review.
22. This exercise of judgement requires the panel to draw on its skills and experience to form a view about the level of concern that should attach to the allegation and how that then impacts on the parole review.
23. An allegation that is relevant to the parole review and of significant weight is likely to be a matter of concern to the panel and therefore impact on its judgement regarding parole in one or more ways identified as 'relevant' above.
24. An allegation that is only marginally relevant, or is relevant but which carries little weight, is likely to be of little concern to the panel and therefore have little to no impact on the parole decision."
Relevant case law
"151. Section 229(3)(a) uses the term "information", as opposed to "evidence", as does section 239(3)(b) in the context of the Parole Board. It is clear from Lord Judge CJ's judgment in Considine's case  1 WLR 414 that the sentencing judge is given considerable latitude as to the range of the information to be considered, subject always to considerations of fairness. In our judgment, the same principle applies to the Parole Board.
152. Our attention was drawn to a number of authorities which show that hearsay evidence is admissible in proceedings before the Parole Board and that matters which are disputed by the prisoner do not necessarily require cross-examination of witnesses, subject to the demands of fairness in the individual case …
154. … In short, there is no implied limitation on the nature or temporal character of the information the Parole Board may take into account in assessing risk: the only constraint is that the board must act fairly."
"There will clearly be times where allegations, either individually or cumulatively, indicate significant risk to the public, but cannot be 'proved' for whatever reason. For example, the Board might find that there is a significant chance, short of a probability, that a given allegation was true, and legitimately consider this as part its "global assessment of risk". Consideration of 'unproven' allegations is of course subject to the overriding requirement that the Board act fairly. What is fair or unfair will depend on the facts of each case. But, in my view, a consideration of allegations which have not been established is not itself intrinsically unfair."
"…the panel must in reality either disregard the allegation as being so far as it can see no more than an allegation, or undertake an investigation and consideration of any evidence that may be presented to it of the conduct of the offender, enabling it to make at least some findings of fact as to what did happen by reference to which, as a factual basis for any conclusions, it might then consider the question of risk."
"… For the same reasons I have given in relation to the first ground of review, the Board is entitled to consider allegations where it is not in a position to make a full finding of fact. Nor do I accept that the 'Guidance on Allegations' encourages the Board to adopt a 'no smoke without fire' approach to allegations. As I have also explained above, it is unfair and therefore impermissible for the Board to give weight to 'mere allegations' which do not have any factual basis whatsoever. The guidance could make this clearer. One might read  as suggesting that an allegation can be taken into account in circumstances where it would be unfair to attempt to establish any of the underlying facts (for example, where there is factual basis to the allegation); or more generally permitting an unfair approach to the assessment of allegations. However, that is not my reading. Instead, this paragraph  merely confirms the ability of the Board to consider allegations when it has not been possible to prove that allegation on the balance of probabilities. Furthermore, it is clear from reading the guidance as a whole that the Board should approach allegations with care (see, for example, ). Moreover, at , the guidance sets out that the Board may decide to attach no relevance and/or weight to an allegation if appropriate."
"… the relevant principle of stare decisis is the principle applicable in the case of a judge of first instance exercising the jurisdiction of the High Court, viz., that he will follow a decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity; but he is not bound to follow the decision of a judge of equal jurisdiction …
… In our judgment, the same principle is applicable when the supervisory jurisdiction of the High Court is exercised not by a single judge, but by a divisional court, where two or three judges are exercising precisely the same jurisdiction as the single judge. We have no doubt that it will be only in rare cases that a divisional court will think it fit to depart from a decision of another divisional court exercising this jurisdiction. Furthermore, we find it difficult to imagine that a single judge exercising this jurisdiction would ever depart from a decision of a divisional court. If any question of such a departure should arise before a single judge, a direction can be made under R.S.C., Ord. 53, r. 5(2), that the relevant application should be made before a divisional court."
Principles decided by the cases
The Claimant's parole review
"1. On one occasion the alleged 13 year old victim (for an offence of rape) was unwilling to support a prosecution and therefore due to lack of evidence to support a prosecution; the matter was finalized as no further action by the police.
2. Mr Pearce was arrested for an offence of rape of a 12 year old girl, this charge was discontinued on CPS advice and the alleged victim denied any sexual activity had taken place between her and Mr Pearce.
3. Mr Pearce was released without charge, on CPS advice, for a further offence of two counts of rape (15 year old girl).
4. Mr Pearce was acquitted at trial for an offence of sexual assault committed against a 20 year old woman
5. Mr Pearce was arrested for an offence of rape committed against a young female but no further action was taken on the advice of the advice of the [sic] CPS.
6. He was released without further action following allegations of sexual assault made by two half-sisters (aged three and six at the time of the alleged offences)."
"I can confirm that the Police have been provided with the details of the non-convicted sexual offending that were previously indicated in my oasys document and I have listed an update of these and Police comments in relation to the information I provided below:
- Previous concerns but no conviction. 17/1/02 - 13 year old girl walking through Cannock town centre, taken by the arm, dragged into a gully and raped. Mr Pearce arrested but released on CPS advice.
Police updated comments state - "The IP was unwilling to support a prosecution and therefore due to lack of evidence to support a prosecution; the matter was finalised as no further action by police.
- 23/04/02 - arrested for rape on 12 year old girl - matter discontinued on CPS advice.
Police updated comments state - "There was DNA evidence found in the underwear of the IP, however, the IP denied any sexual activity with Pearce saying they were 'best friends.'
- 25/11/05 – Mr Pearce invited 15 year old female into his flat, led her to the bathroom, undressed her and produced a condom. The female stated she did not want sex, but he ignored this and had intercourse on 2 occasions. Interviewed, but released without charge.
Updated Police comments state – 'This is recorded as 25/11/2002 not 2005. Release without charge on CPS advice, offender claimed intercourse was consensual and he believed the IP to be over 16.'
- 6/3/04 - alleged sexual assault on 20 year old woman he had befriended in a nightclub. They moved onto another address along with a number of others. When she went to a phone kiosk, he followed and is alleged to have forced her to the ground and attempted to rape her. Acquitted at trial.
Police updated comments state – 'This offence appears on his PNC as a not guilty disposal.'
- Also, West Midlands Police interviewed him in relation to the rape of a young female- said to have followed her back to a flat, gained entry and raped her.
Updated Police comments state – 'We have this reported on bad character report for court as being reported on the 23/09/2003 in Wolverhampton; advice file submitted to CPS – outcome was no further action as offender claimed intercourse was consensual and the IP evidence is conflicting.'
The Police have advised me that there is new information relating to alleged non-convicted offending that was not available at the time of Mr Pearce's conviction. These are as follows:
IP's females born 1991 and 1988; the IP born 1991 reported in December 1994 to her mother that the Offender Dean Alan Claxton b. 01/07.1982 in Cannock between 01/08/1994 and 30/11/1994 had 'put his private in my private'.
The mother asked the IP's half- sister (born 1988) if anything had happened to her and she replied that the Offender had tried to do the same to her but she had pushed him off.
A statement was obtained from the IP. The IP's half-sister was video interviewed but made no disclosures. The IP and her half-sister were medically examined and there was no evidence of sexual abuse although touching could not be excluded. Mr Pearce was interviewed. He denied the allegations. It was decided that NFA could be taken.
09/04/2004 – Dean Pearce reporting that he has escorted a drunken female home in a taxi and on arrival to her home Pearce requested the help of the female's friend and father to remove her from the taxi, the father then accused Pearce of hassling the female and became angry at Pearce – there were no complaints forthcoming. I mention this as the MO of being the in company of a lone drunken female.
02/07/2004 @ 02.43 hrs– a report from Pearce via his personal mobile that he has encountered a lone female about 18 years of age in Cannock who was upset and very nervous, he believed she may have been sexually assaulted from what she was telling Mr Pearce. Mr Pearce offered to walk her home but the female refused. The female was seen later that day but refused to make any complaint or speak to the police."
"The panel discussed each of the allegations with you and you informed the panel that you were arrested on many occasions when you were young and that you struggled to recall details of the five allegations. You said that you have tried to forget about the past. The panel did not find it plausible that you would have no recollection of being arrested for multiple offences of rape and pressed you on each of the allegations. You did say that you remembered being interviewed about the 2005 matter regarding a 15 year old female, you stated, 'I almost lost my bed in the YMCA over it. Met her when I was out'. You denied having sex with her in your evidence to the panel; the panel notes that at the material time you did admit to having sex with her to the police but said that it was consensual. The information regarding this allegation was within a bad character report provided to the Court at trial.
The allegation of sexual assault, you say, was an instance when you waited with the female to support her whilst she waited for her boyfriend to pick her up. – the panel notes that there are similarities with the index offence where you initially acted to "help" the victim and then assaulted her. In relation to the allegations on 02/07/2014, you say that you "found a girl who had been sexually assaulted and I rang the Police". It is noted that once again a female who has been assaulted is being "helped" by you. You were adamant that you do not recall being arrested in connection with the rape of 12 year old girls. In respect of the 12 year old in 2002 when your DNA was found inside her undergarments, you say you cannot remember any details. In discussing the allegation dated 09/04/2004, you stated that you were in a taxi with the alleged victim, you say that you had an argument with her father as he seemed unhappy that she was in a taxi with you.
The panel considered the information provided in the Dossier regarding the allegations discussed in the hearing. The panel makes a finding of fact in respect of the 12-year-old child where your DNA was found inside her undergarments. The finding is that you must have had some form of sexual contact with her, which cannot have been consensual given her age. In regards to the 4 other allegations the panel makes a finding that they are of concern. The panel found that all the allegations were relevant to you and your risk of sexual offending and serious harm when you are in the community. The panel did not find your lack of recollection plausible and noted your extreme discomfort in discussing the allegations. This is, of course, not entirely surprising, however it is important to your future self–management that you further develop our abilities to discuss your sexual thoughts and behaviours openly."
"… having concluded its risk assessment the panel is of the opinion that it is premature to consider a risk management plan/release plan. It is also of the view that your release needs to be gradually managed, beginning with carefully risk assessed day releases. Following those, your conduct, particularly with young women and girls, can be reviewed and taken into account when deciding next steps. The risks you pose will continue to be managed by the prison service whilst you address your risk factors and you will work with your offender manager to develop a release and risk management plan at the appropriate time."
"You continue to pose a risk of harm to the public that is such that you need to be confined in custody. However, on balance it was satisfied that you have addressed your risk factors to a degree that they would be manageable in the less restrictive regime in open prison conditions; and whilst on agreed absences on town visits or ROTLs where you would be un-escorted. You are assessed as posing a low risk of abscond. The panel has identified in this letter a range of issues that can usefully be addressed in open prison conditions ahead of release.
The panel is of the opinion that it is now necessary for you to be tested in open conditions to ascertain whether you have internalised the lessons you have been taught and can act upon them in conditions that are more realistic and where you will be exposed to more realistic external stimuli, challenges and indeed potential victims. You will also be tested in terms of your ability to comply and self-manage in less restrictive prison conditions."
i) held that the Board is entitled to ignore the dichotomy between facts and non-facts;
ii) held that the Board may arrive at its decision without first finding the relevant facts;
iii) held that the standard of proof in the Board's hearings is neither the criminal nor the civil standard; and
iv) was inconsistent with, or failed to take into account, binding authorities.
The parties' submissions on Ground 1
Conclusion on Ground 1
i) He claimed to have no recollection of multiple arrests on allegations of rape and the panel found this implausible.
ii) In relation to an incident with a 15 year old girl in 2005, he denied having sex with her to the panel but at the time had admitted sexual intercourse to the police and the incident was included in a bad character report at his trial.
iii) At least one allegation arose from an incident when he volunteered to help a young woman who was distressed after an assault, and that situation resembles that of his index offence.
iv) In 2002 he must have had sexual contact with a 12 year old girl, which cannot have been consensual, because his DNA was found in her underwear.
v) He exhibited "extreme discomfort" when discussing these allegations.
vi) The five allegations were of "concern" and were relevant to the question of risk.