The Court held that there was no general legal rule or rule of substantive fairness that in making a risk assessment the Board must adopt a two-stage approach of making findings of fact on the balance of probabilities and then treating only those matters on which it has made findings of fact as relevant to the assessment of risk. There is no requirement to be implied into the statute that the Board must disregard the possibility that an allegation which has not been established as true on the balance of probabilities, may be true. The Court explained that even if the Board is unable to make a finding of fact in respect of an allegation, it may still take into account the allegation and give it such weight as it considers appropriate in a holistic assessment of all the information before it where it is concerned that there is a serious possibility that the allegation may be true. The Court also held that there may be circumstances where the information about an allegation is less than would be desired but the allegation causes sufficient concern as to risk that the Board treats it as relevant.
The Court emphasised throughout its judgment the importance of the Board adopting a fair procedure. This includes making findings of fact where possible.
The Board was invited to review its guidance in light of the judgment.
A copy of the judgment and the official summary can be found here.
Conor Fegan acted for the Parole Board instructed by the Government Legal Service. He was led by Ben Collins KC (Old Square Chambers) and Sarah Sackman (Matrix Chambers).