McGetrick, R (on the application of) v The Parole Board & Anor

These proceedings raise the question of whether it is lawful for the Parole Board, when deciding whether to release a prisoner on licence, to take into account material provided by the Secretary of State containing factual allegations about the prisoner’s pre-trial conduct, which formed part of the original prosecution case against him, but in relation to which he was never convicted. This material was referred to before us as the “untried material”, and it is convenient for me also so to refer to it.

On 6 May 2005, following guilty pleas, the Claimant was sentenced to seven years’ imprisonment plus an extended licence period of three years, under section 85 of the Powers of Criminal Courts (Sentencing) Act 2000. The sentence was imposed in relation to two different sets of offences, the first concerning possession of firearms and ammunition; and the second concerning possession of a large number of indecent images of children on his computer.

In sentencing him, the Judge at Northampton Crown Court stated [147]:

“I bear in mind that it does not appear that you had those images other than for your own gratification in some form or another and therefore this is an important mitigating factor. I know not why you got involved in such offending, but that you undoubtedly did is all too apparent by the number of images the court has had to consider. Those are serious matters but they do lack, fortunately, some of the various factors such as distribution, production and matters of that sort, which would require the court to pass a severer sentence”.

After noting that the Claimant had no previous convictions, the Court imposed the sentence referred to above.

On 4 February 2009, following an oral hearing the previous month, the Parole Board directed that the Claimant be released on licence, his risk being found sufficiently low to warrant such release. His licence included as condition 9 a condition “Not to own or use a computer... capable of accessing the internet... without the prior approval of your supervising officer” and as condition 11 a condition “Not to have unsupervised contact with children under the age of 16 without the prior approval of your supervising officer”. He was released on 23 February 2009.

On 18 September 2009, the Secretary of State recalled the Claimant to prison. This followed an incident in which the Claimant was seen by a police officer to have spoken to two school girls aged around 9 years old in a public place “for a couple of seconds”. The girls’ evidence to the police officer was that the Claimant, who had had been walking with his mobile phone to his ear, had said “I’m fed up getting voicemail”. This was considered by the probation service and the Secretary of State to be a breach of condition 11 of his licence. He was then seen to enter an internet cafe and to access a number of websites including Google, email sites, and a “dirty dating” website which contained images of partially clothed adult women. This was a breach of condition 9.

The Claimant’s case was initially considered by the Board on the papers, and then at an oral hearing in August 2010. The Board’s assessment was that “you currently pose a medium risk of serious harm to children and the public and a low risk of reconviction”. However the Board considered that it had insufficient evidence to make a final decision about re-release, and directed the Claimant’s Offender Manager, Ms Pauline Hughes, to arrange for the Claimant to be assessed for the Internet Sex Offenders Programme (ISOP).

The next hearing of the Board was on 3 November 2010. At that hearing, a series of further risk assessment reports were placed before it in an updated dossier prepared by the Secretary of State. The updated dossier included the untried material. That material consisted of a Case Summary that had been prepared by the CPS prior to the Claimant’s Crown Court trial. In addition to referring to the allegations of possessing firearms and indecent images of children on which he had been convicted, the Summary included allegations that the operator of the Claimant’s computer had, at some point before his arrest in September 2004, exchanged images with other internet users and had boasted in emails of raping two children and having a “very loving relationship” with his 9-year-old daughter. It referred to the fact that the Claimant had been subsequently arrested on suspicion of indecent assault on children unknown and charged with specimen offences including distributing an indecent photograph of a child and sending obscene and menacing messages via email. In addition, the untried material included prosecution witness statements from the police relating to these allegations. No indictment was ever pursued in relation to any of these matters, and the Claimant was not convicted of any offence in connection with them.

As noted above, the updated dossier also included a report from Ms Hughes, the Claimant’s Offender Manager at the Probation Service, dated 7 October 2010. It stated:

“... since the recall information has come to light which supports my assessment that Mr McGetrick is a risk of contact offences towards children. This information has been submitted to the Parole Board via the Parole Clerk and is in summary police information which relates to correspondence found at the time that the indecent images of children were discovered on Mr Mcgetrick’s personal computer.”

The report referred in detail to the untried material, and to concern of a “heightened risk related to contact offences” arising from the untried material.

The updated parole dossier also contained a detailed report from Julia Long, an independent and experienced Chartered Forensic Psychologist, with 22 years’ experience, including working for HM Prison Service as its Principal Psychological Adviser and Head of Casework; and for the Parole Board as the manager of the Board’s Quality Unit. Her opinion was that recent reports for the Claimant’s re-release review “appear to have reverted to making assertions about risk that have no empirical basis and seem merely linked to an absence of understanding of Mr McGetrick’s offending behaviour”. She criticised Ms Hughes’ report and stated that “there are genuine ethical and professional issues about using material that was not tested at Court”.

The Claimant’s solicitor’s letter to the Board dated 28 October 2010 enclosed Ms Long’s report and made representations as to why the untried material should not have been included in the dossier. It made express reference to the instructions contained in Prison Service Order 6000, which states:

“… pre-trial prosecution evidence, such as witness statements... must not be included in the dossier as they do not necessarily set out the circumstances of the offence as established in court: they are liable to challenge by the prisoner and could mislead the Parole Board...”

The letter was copied to the Secretary of State, who responded by email on 1 November 2010. It contended that the instructions contained in PSO 6000 was:

“specific to Determinate Sentence DCR prisoners and refers to dossiers which would be compiled for pre-release Parole Reviews on paper. For recall Oral Hearings dossiers however, we can include all documents that may be relevant to risk (inclusive of Case Summaries, hearsay evidence etc). The Panel will, at the hearing, place what weight they will, on the evidence on the dossier, including the MG5 report...”

At the next hearing of the Board on 8 November 2010, Counsel representing the Claimant submitted that the untried material should not be shown to the Panel of the Board considering the Claimant’s re-release on licence. The Board’s decision stated:

“The Panel considered that this was a matter of importance to the Parole Board, which could not be interpreted by individual members. [Counsel for the Claimant] indicated that should we decide that the answer was as submitted by [the Secretary of State], he would then request an adjournment to argue his point on judicial review. The Panel therefore adjourned your hearing to a date to be fixed, once your solicitors, NOMS and the Parole Board have satisfactorily agreed this matter or the point has been decided by the Administrative Court. ...”

Further correspondence ensued between the Claimant’s solicitors and the Secretary of State, but no agreement was reached about whether the untried material should be included in the Parole Dossier. On 16 December 2010, the Claimant’s solicitor wrote to the Board, inviting it to make a decision about whether the untried material should be considered by the Board. On 23 February 2011, the Board’s Head of Casework wrote to the Claimant’s solicitor, communicating the decision of the Chairman of the Board:

“My conclusion is that the allegations, for good or ill, form part of the material before the Panel. It is therefore for the Panel to decide whether it is relevant, and if it is, to come to a conclusion as to the weight it should give to it. The Panel also has an obligation to act fairly. If it concludes that the allegations not relied on at trial are relevant, but that it cannot fairly determine whether or not they have been made out, it would have to give them little or no weight, which would, in turn, affect its view of the reliance on any reports which did rely on them.”

Section 239 of the Criminal Justice Act 2003 provides:

239 The Parole Board

(1)

The Parole Board is to continue to be, by that name, a body corporate and as such is--

(a)

to be constituted in accordance with this Chapter, and

(b)

to have the functions conferred on it by this Chapter in respect of fixed-term prisoners and by Chapter 2 of Part 2 of the Crime (Sentences) Act 1997 (c 43) (in this Chapter referred to as "the 1997 Act") in respect of life prisoners within the meaning of that Chapter.

(2)

It is the duty of the Board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners.

(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)

Without prejudice to subsections (3) and (4), the Secretary of State may make rules with respect to the proceedings of the Board, including proceedings authorising cases to be dealt with by a prescribed number of its members or requiring cases to be dealt with at prescribed times.

(6)

The Secretary of State may also give to the Board directions as to the matters to be taken into account by it in discharging any functions under this Chapter or under Chapter 2 of Part 2 of the 1997 Act; and in giving any such directions the Secretary of State must have regard to--

(a)

the need to protect the public from serious harm from offenders, and

(b)

the desirability of preventing the commission by them of further offences and of securing their rehabilitation.

(7)

Schedule 19 shall have effect with respect to the Board.”

The Secretary of State recalled the Claimant under the power conferred by section 254:

“254  Recall of prisoners while on licence

(1)

The Secretary of State may, in the case of any prisoner who has been released on licence under this Chapter, revoke his licence and recall him to prison.

(2)

A person recalled to prison under subsection (1)—

(a)

may make representations in writing with respect to his recall, and

(b)

on his return to prison, must be informed of the reasons for his recall and of his right to make representations.

…”

His case was referred to the Board under section 255D of the 2003 Act:

“255D  Extended sentence prisoners

(1)

The Secretary of State must refer to the Board the case of any extended sentence prisoner.

(2)

Where on a reference under subsection (1) relating to any person the Board recommends his immediate release on licence under this Chapter, the Secretary of State must give effect to the recommendation.”

It is common ground that the Board was to consider making a recommendation for the release of the Claimant, that any such recommendation would have been binding on the Secretary of State, and it thought the duty imposed on the Board by section 239(3) applied to its considerations. At the time of the Claimant’s referral, there were no procedural rules applicable to it. There are now such rules, contained in the Parole Board Rules 2011.

For the Claimant, Mr Grodzinski QC submitted:

Ms Giovannetti QC and Mr Strachan, for the Board and the Secretary of State respectively, disputed each of these submissions.

I shall address them in the above order.

Mr Grodzinski’s submission, to which I was initially attracted, is that the Board, as a judicial body, has inherent power to control its own procedure. That power is subject to any applicable statutory limitation or regulation, but there is no relevant limitation or regulation. The Board and the Secretary of State rely on section 239. It is common ground that the untried material consists of documents given to the Board by the Secretary of State. However, contrary to the ruling of the President set out at paragraph 13 above, subsection (3)(a) does not require the Board to consider such documents when making its substantive recommendation. If it considers such documents at the interlocutory stage, it is equally “dealing with cases as respects which it makes recommendations …”, and in the exercise of its inherent powers as a judicial body it may lawfully decide that such documents should be excluded and not taken into account when making its substantive recommendation.

Ms Giovannetti and Mr Strachan accept that the Board is a judicial body, and that as such it has implicit or inherent power to regulate its procedures. However section 239(3) mandates it to consider the documents given to it by the Secretary of State when making its recommendations.

In essence, this is a question of statutory interpretation: what is meant by “dealing with cases” in section 239(3)? Clearly, in a sense, the Board is dealing with a case whenever it makes an interlocutory decision (e.g., whether to adjourn a substantive hearing) as well as when it makes a substantive recommendation.

In my judgment, the phrase “dealing with cases” does include the consideration and the making by the Board of its substantive recommendation. It is dealing with a case when it makes an interlocutory decision; but it is still doing so when it makes its substantive decision, and section 239(3) requires it at the latter stage to consider all the documents given to it by the Secretary of State. That this is so is, I think, made clear by subsection (4). It makes no sense to interpret subsection (4) as satisfied by an interlocutory decision: it uses the words “must deal with cases” as meaning “must decide cases”. Substantive decisions are made on consideration of evidence, interlocutory decisions may or may not be (as where a case is adjourned part heard through lack of time). The phrase must have the same meaning in subsection (3). This interpretation of the phrase “deal with cases” is also consistent with the power conferred on the Secretary of State by subsection (5). It authorises the Secretary of State to make rules as to the number of members of the Board who may comprise a panel to deal with, i.e., to decide, cases.

This conclusion is the same as that of Scott Baker J (as he then was) in the unreported case of R (Harris) v Parole Board CO/2406/97, a judgment delivered on 15 September 1997.

It follows that I would reject this ground. It does not follow, however, that the Board is bound to give weight to the evidence contained in any document given to it by the Secretary of State. The Board may decide that such evidence is of great, or little, or negligible, or even no evidential value. In making that appraisal, it is considering such documents as required by section 239. The section does not qualify the inherent power of the Board to decide what if any weight to be given to any evidence it considers.

Mr Grodzinski submits that the untried material is pre-trial prosecution evidence, and PSO 6000 provides that it must not be included in the dossier to be submitted to the Board. In the absence of good reason to depart from it, the Secretary of State’s departure from what is his published policy renders its submission to the Board unlawful: R (Lumba) v Home Secretary [2011] UKSC 12 [2011] 2 WLR 671.

I do not think it necessary to consider the Board’s and the Secretary of State’s earlier confused responses to this ground. The first question must be to determine the scope of PSO 6000. It is only if it applies in its terms to untried material that the more difficult questions arise as to whether in this case the Secretary of State’s inclusion of the untried material in the dossier was unlawful, and as to the legal position of the Board when material is unlawfully given to it by the Secretary of State, bearing in mind the unqualified terms of section 259(3) and (4).

Appendix Q to Chapter 8 is now agreed to be the relevant provision of PSO 6000. Appendix Q is entitled “Guidance on Dossier Collation for Extended Sentence Cases”. Paragraph 2 is headed “Summary of offence(s)” and is as follows:

“An accurate, brief description of the offence(s) for which the prisoner was found guilty and sentenced is essential. This includes reports on any offences committed whilst the prisoner was on licence, before his recall to prison. In the case of long-term prisoners, information relating to the original offence should already be available, although details of any subsequent offence will need to be requested from the police. In the case of short-term prisoners, it will be necessary to request information relating to both the original offence and any subsequent offence. If Parole Clerks experience difficulties in locating this information, they should advise the Extended Sentence Team. These reports should be included in the Prison Record and transferred when the prisoner moves. The police may occasionally provide pre-trial prosecution evidence, such as witness statements or statements of interviews. These must not be included in the dossier as they do not necessarily set out the circumstances of the offence as established in court: they are liable to challenge by the prisoner and could mislead the Parole Board. If, however, these are the only reports of the offence that can be obtained from the police, advice should be sought from the Extended Sentence Team. If it does not prove possible to obtain a police report, details of the offence may be contained in the pre-sentence report or the pre-sentence psychiatric report. However every effort must be made to obtain a police report.”

The emphasis is in the original.

It is clear, in my judgment, that the prohibition of pre-trial prosecution evidence relates to evidence of the offences of which the prisoner was convicted (or to which he pleaded guilty). This is clear from the reference “the circumstances of the offence as established in court”. I arrive at this interpretation of paragraph 2 on its wording alone, but this interpretation is also the most sensible interpretation. The reason for the restriction is obvious. There may be significant differences between some evidence and the account of the facts of an offence accepted by the court. As an obvious example, in a case of assault occasioning grievous bodily harm, the victim may have alleged that the assault was unprovoked. However, the judge may have accepted in his sentencing remarks, on the basis of other evidence, that the victim did provoke the assault. The effect of paragraph 2 is that the Board will normally be confined to the sentencing remarks of the judge. Where, however, the matter in question (whether it amounts to a criminal offence or not) has not been the subject of a prosecution or adjudication, the facts will not have been established in court, and the Secretary of State is entitled to require the Board to consider any relevant evidence, including witness statements.

Furthermore, this interpretation is consistent with the requirement that the Board should have before it all information that bears on its consideration of the risk to the public of the prisoner committing further offences if he is released. As Lord Woolf CJ said in R (Roberts) v Parole Board [2005] UKHL 45 [2005] 2 AC 738 at paragraph 38:

“… The Board should be in a position to know all the relevant information about the progress that the prisoner has made during his sentence. In addition, in some situations, the risk that will exist could relate to circumstances that did not exist at the time of sentence. However, both from the point of view of the prisoner and from that of the public, whom the Board is intended to protect, it is critical that the Board, whenever possible, is aware of any relevant information before it reaches its decision to release a prisoner on licence.”

The decision of the Court of Appeal in R (Brooks) v The Parole Board [2004] EWCA Civ 80 is an example of the application of this overriding principle. The Court of Appeal upheld the decision of Elias J (as he then was) at first instance, who dismissed the prisoner’s claim for judicial review of the decision of the Board to take into account the hearsay evidence of a woman who alleged he had raped her. The judgment of Kennedy LJ includes a valuable summary of the legal position under the then applicable legislation:

“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. …

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.’

….

38.

Once the situation has been properly analysed in relation to the non-attendance of [the alleged rape victim], and the decision to proceed without her, it seems to me that there can be little difficulty in deciding whether in the absence of [the alleged victim] 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 [the alleged victim] were dead or physically unable to attend, and, as Elias J pointed out, if the allegations of [the alleged victim] 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 …”

Kennedy LJ’s summary remains relevant under current legislation. It is essential to bear in mind that it is not the function of the Board to find a prisoner guilty or innocent of any offence or other misconduct. Its function is to assess the risk that would be created if the prisoner is released on licence. For that purpose, the Board must take into account hearsay and other evidence of misconduct or criminal offences on the part of the prisoner, whether that misconduct or offence took place before or after or at the same time as the offending for which he was sentenced. Similarly, the Board must take into account evidence as to the relevant good conduct of the prisoner, whenever it took place. The weight, if any, to be given to that evidence is a matter for the Board.

It follows that the ground for judicial review based on PSO 6000 fails at its first hurdle.

The Claimant contends that the admission of the untried material would be unfair and contrary to natural justice both on principle and on the facts of this case. The particular facts on which he relies are that the computer on which the alleged emails and other material was said to have been found is no longer available for him to prove his innocence of the allegations in the untried material and the long passage of time since the events in question.

I do not find this contention persuasive. The loss of the computer may equally mean that the Claimant’s guilt of the matters that are alleged in the untried material cannot be convincingly proved. I have no doubt that the Board will take into account both its loss and the difficulties created by the passage of time. They will take into account the fact that the CPS did not prosecute for the offences that are the subject of the allegations in the untried material. The Claimant will have the opportunity to comment on these allegations and to dispute them. I have no doubt that the matters alleged in the untried material are capable of affecting the assessment of the risk of the Claimant’s release. In my judgment, there is no basis for a finding that the Board will necessarily be guilty of unfairness or breach of natural justice if it gives the untried material the weight, if any, that it finds appropriate. A similar situation was considered by Scott Baker J (as he then was) in the case of Harris, to which I referred above. In that case, the applicant sought judicial review of the Board, which proposed to take into account an untried allegation of jury nobbling. Scott Baker J dismissed the claim. He said:

“It seems to me that in the circumstances of this case fairness dictates that the applicant should have a full and proper opportunity of answering to the Parole Board the detailed allegations made in the post-trial report.

It is then a matter for the Parole Board of considering his case to consider all the circumstances of the case including the applicant’s answer. Where he is able to show that allegations are unsupported by a source and he has some answer to them no doubt the board would give very careful consideration to that before they placed any significant weight on the unsubstantiated allegations. But it seems to me that it would be quite wrong that the Parole Board should be deprived of the opportunity of seeing material of this nature and of hearing anything that a prisoner has to say about it. There may well be circumstances where allegations, even though uncorroborated, are true and indeed are accepted by a prisoner and it may well be that in a particular case they are of some significance in the context of the evidence as a whole.

It is clear that in this case the applicant did have an opportunity of giving his answer to these points before the original Board and it is also clear that he has an opportunity of making further fresh representations to the new Board that will consider his case entirely afresh on 2 October of this year. In my Judgment he has been given and will be given a fair opportunity to contest the evidence.

The appropriate route in the event that the Parole Board acts inappropriately with regard to considerations of the kind that are raised in this case is for the decision to be judicially reviewed. It seems to me that it is inappropriate for material to be withdrawn before it is ever considered at all. Bearing in mind that there will be on the panel an experienced lawyer, I do not see any risk of injustice in a case such as this. I am sure that the Parole Board panel is well able to evaluate the weight that ought to be given to unsubstantiated hearsay evidence and to the answers that are provided to it by a prisoner, and in this case, his solicitors.”

The panels of the Board do not now necessarily include a lawyer. Subject to that, what Scott Baker J said in that case is equally applicable to the present.

For these reasons, I would dismiss this claim.

I agree