Pearce & Anor, R (on the application of) v Parole Board of England and Wales

Factual and Procedural Background

The Defendant is a statutory body responsible for determining whether prisoners may be released on licence. Following the Divisional Court’s decision in R (D) v Parole Board [2019] QB 285, the Defendant issued written “Guidance on Allegations” explaining how panels should handle unresolved assertions about a prisoner’s past behaviour.

Plaintiff, a prisoner whose release had been refused, commenced judicial review. At first instance, Judge Bourne upheld both the Defendant’s refusal to release and the lawfulness of the Guidance. The Court of Appeal agreed that the refusal to release was justified but declared parts of the Guidance unlawful, concluding that the Board could consider only facts proved on the balance of probabilities.

The Defendant appealed to the Supreme Court (constituted by Judge Hodge, Judge Hughes, Judge Kitchin, Judge Hamblen and Judge Richards). By the time of the appeal, no issue remained about Plaintiff’s individual release; the sole question concerned the general legality of the Guidance.

Legal Issues Presented

1. Whether, when assessing risk for the purposes of release on licence, the Defendant is confined to proven facts or may also weigh the possibility that unproven allegations are true.
2. Consequently, whether the Defendant’s published “Guidance on Allegations” is lawful.

Arguments of the Parties

Appellant’s Arguments (The Parole Board)

• Risk assessment is an evaluative judgment in which strict standards of proof play no mandatory role.
• The law contains no universal “binary” rule limiting decision-makers to proven facts; unproven allegations may be relevant to risk.
• The Guidance correctly permits panels, in appropriate circumstances, to consider allegations that cannot be formally proved.

Respondent’s Arguments (Plaintiff)

• There is a general legal principle that only facts proved on the balance of probabilities may be taken into account.
• The Children Act care-order jurisprudence (e.g., In re H) illustrates the required “binary” approach and should apply by analogy.
• Paragraphs 6(c), 9(3) and 18–24 of the Guidance unlawfully invite panels to rely on “non-facts,” thereby breaching procedural fairness.

Table of Precedents Cited

Court's Reasoning and Analysis

The Supreme Court rejected the existence of a universal “binary” rule restricting decision-makers to proven facts. Drawing on Shagang Shipping and Rehman, it held that:

• Only “facts in issue” (those legally necessary to establish an entitlement) must be proved to a standard of proof. Allegations forming part of the material for a predictive judgment need not each be so proved.
• The Defendant’s statutory test—being “satisfied that it is no longer necessary for the protection of the public” that the prisoner remain confined—requires an evaluative prediction of future risk, not a determination of criminal liability.
• Procedural fairness obliges the Board to attempt findings of fact where reasonably practicable and to give the prisoner an opportunity to respond, but fairness does not require the Board to ignore potentially relevant, yet unproven, matters where fact-finding is impossible or inappropriate.
• The Children Act analogy relied on by Plaintiff was inappropriate; that regime contains distinct policy safeguards against state intrusion into family life which do not translate to parole decisions.
• The concept of a “mere allegation” is unhelpful; the real focus should be on the quality and context of the available information and the weight rationally attributable to it.

Applying those principles, the Court found that the Guidance correctly permits panels, in limited circumstances and with caution, to consider unresolved allegations as part of a holistic risk assessment. While some drafting could be improved, its substance accords with the law.

Holding and Implications

APPEAL ALLOWED. The “Guidance on Allegations” issued by the Defendant is lawful.

Implications: The Defendant may continue to rely on the Guidance, subject to possible redrafting for clarity. Panels are not confined to proven facts but must approach unproven allegations cautiously, attempt fact-finding where feasible, and afford prisoners procedural fairness. The judgment clarifies that risk-assessment bodies across the UK may consider the realistic possibility of misconduct even when definitive proof is unavailable, without breaching public-law fairness.