Mistake of fact: High Court quashes Parole Board decision and orders a new hearing  

Henry v Parole Board [2011] EWHC 2081 (Admin) judgment

In this case, the Claimant had been convicted of two out of three counts of rape. It was common ground that the count on which the jury were unable to agree was by far the most serious count, involving significant threats and violence, as well as being alleged to have taken place whilst the couple’s child was watching.

The PB were made aware of this at the Claimant’s oral hearing. Nonetheless, the PB went on to refuse to recommend a move to open conditions, pointing to the Claimant’s vagueness or inconsistency in respect of the events which had never been proved against him.

HHJ Waksman QC (sitting as a High Court Judge) quashed the PB’s decision, pointing out that he could not be sure that the PB had not proceeded on a misunderstanding or in ignorance of an established fact, namely that the count 1 events had never been proved against the Claimant. The Judge noted that the PB’s reasoning indicated that it had not been so aware, it having queried, for example, whether the child had been awake or not. Yet this had not been a live issue on the proven facts; see generally §§31, 42 & 52.

Commentary

This is a case where initially the PB could have been forgiven for its mistake, given that the unproven events were contained in the parole dossier and repeated by report writers as if they were true. It was therefore surprising that when the actual proven and unproven events were made absolutely clear to the PB, by virtue of the judicial review proceedings, the PB nonetheless wished to defend its decision on the premise that it must have known. The PB also relied on well-known cases such as R (Alvey) v Parole Board [2008] EWHC 311 (Admin), which indicate that the Court should be slow to interfere with its risk assessment. However, the Judge accepted the Claimant’s argument that these cases did not answer his claim, which was based on an error of law; namely a mistake of fact.

As to the PB’s approach to a person’s unproven offending, HHJ Waksman carefully stated that the PB could ask questions about what had happened prior to the proven offences; that is, to ascertain the applicant’s state of mind and reasoning for the offence; see §42. However, as was accepted by the PB’s Counsel, the PB must respect the findings of the jury and could not ask questions about an offence for which a prisoner has not been convicted; that is, on the basis that he has been convicted. Their questioning must proceed from the correct starting-point. It is of note that the proven facts are generally set out in the Trial Judge’s sentencing remarks. As HHJ Waksman pointed out, it was significant that the Trial Judge in the present case had not mentioned the alleged significant threats or violence, or the child witnessing the offence.

The PB have withdrawn their application for permission to appeal.

The Claimant was represented by Vijay Jagadesham of Garden Court North Chambers and Sara Jayne-Pritt of Swain and Co Solicitors .