Pearce & Anor, R (on the application of) v Parole Board of England and Wales [2023] UKSC 13

The Supreme Court considered whether the Parole Board could take into account unproven allegations when assessing a prisoner's risk to the public. The Court held that the Board is not limited to considering only facts proven on the balance of probabilities but may assess the possibility that allegations are true, provided procedural fairness is observed.

Facts

Dean Pearce was serving an indefinite sentence of imprisonment for public protection (IPP) following convictions for sexual assault. The Parole Board declined to direct his release after considering not only his convictions but also multiple unproven allegations of sexual offending spanning many years. The Board’s published Guidance on Allegations permitted panels to consider unproven allegations in their risk assessments without necessarily finding them proven on the balance of probabilities.

The Allegations

The allegations against Pearce included incidents from 1994 onwards involving children and young women, none of which had resulted in prosecution or conviction. The Board questioned Pearce about these matters and found his denials implausible. The Board declined to direct release but recommended transfer to open conditions.

Issues

The central legal issue was whether the Parole Board’s Guidance was lawful in permitting consideration of allegations that had not been proven on the balance of probabilities. The claimant argued that the law required a binary approach: facts must be either proven or treated as non-facts and disregarded entirely.

Judgment

The Supreme Court unanimously allowed the appeal and held that the Guidance was lawful. Lords Hodge and Hughes, with whom the other Justices agreed, rejected the argument that there exists a general legal principle requiring all facts relevant to a decision to be proven on the balance of probabilities before being considered.

“There is no general legal principle that a court of law or the Board in making a risk assessment can have regard to evidence or information only if it is established as a fact by admission or on the balance of probabilities.”

The Court distinguished between ‘facts in issue’ which must be proven to a particular standard, and other material from which inferences may be drawn or which forms part of a broader evaluative assessment.

“In the assessment of risk of future behaviour – an inherently imprecise exercise – it is not necessary to consider each allegation of past behaviour individually and decide whether it is established on the balance of probabilities.”

The Children Act Analogy

The Court rejected the analogy drawn with care proceedings under the Children Act 1989, where allegations must be proven before passing threshold criteria. The policy reasons underlying that rule—protecting families from unwarranted state intrusion—had no equivalent in parole decisions where the prisoner is already subject to a sentence of imprisonment.

Procedural Fairness

The Court emphasised that procedural fairness requires the Board to give prisoners the opportunity to respond to allegations and make submissions about how the Board should proceed. However, fairness does not mandate that only proven facts be considered.

“A failure to make findings of fact where it was reasonably practicable to do so or an irrational reliance on insubstantial allegations could be a ground of a successful public law challenge.”

Implications

This decision confirms that the Parole Board may adopt a holistic approach when assessing risk, taking into account the possibility that unproven allegations may be true where there is a serious possibility they are accurate. The Board should attempt to make findings of fact where practicable, but is not precluded from considering allegations that cannot be so determined, provided it proceeds with caution and gives appropriate weight to the evidence.

The judgment provides important guidance on the limits of procedural fairness in risk assessment contexts and distinguishes the parole process from both criminal trials and care proceedings. It affirms the essentially inquisitorial nature of Parole Board proceedings while maintaining safeguards against arbitrary or irrational decision-making.

Verdict: Appeal allowed. The Parole Board’s Guidance on Allegations was held to be lawful. The Court invited the Board to review the terms of the Guidance in light of the judgment to provide greater clarity.

Source: Pearce & Anor, R (on the application of) v Parole Board of England and Wales [2023] UKSC 13