When considering and making its substantive recommendation on the question of the early release or recall of prisoners on licence following a reference to it by the Secretary of State for Justice, the Parole Board was “dealing with the case” within the meaning of section 239(3) of the Criminal Justice Act 2003 and was therefore required to consider all the documents given to it by the Secretary of State.

The prohibition on the inclusion of pre-trial prosecution evidence contained in para 2 of Appendix Q to Chapter 8 of Prison Service Order 6000 providing “Guidance on dossier collation for extended sentence cases” prohibited the inclusion of pre-trial prosecution evidence relating to the offences of which the prisoner had been convicted or to which he had pleaded guilty. Where, however, the matter in question (whether or not it amounted to a criminal offence) had not been the subject of a prosecution or adjudication, the facts would not have been established in court, and the Secretary of State was entitled to require the Parole Board to consider any relevant evidence including witness statements.

The Divisional Court so held in a reserved judgment dismissing a claim for judicial review brought by the claimant, Gregory McGetrick, of the decision of the first defendant, the Parole Board, that it lacked the power to exclude material relating to untried allegations, provided to it by the second defendant, the Secretary of State for Justice, when considering the question of the claimant’s release from custody following his recall to prison pursuant to an extended sentence order. The grounds of review, inter alia, were that (i) the Board had misdirected itself in concluding it had no power to exclude untried material; and (ii) the submission of the material by the Secretary of State had been in breach of para 2 of Appendix Q to Chapter 8 of Prison Service Order 6000 and was therefore unlawful.

Section 239 of the Criminal Justice Act 2003 provides: “(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.”

STANLEY BURNTON LJ said that the Board would be “dealing with cases” for the purposes of section 239 of the Criminal Justice Act 2003 when making an interlocutory decision; but would still be doing so when it made its substantive decision. Accordingly, section 239(3) required it at the latter stage to consider all the documents given to it by the Secretary of State. That that was so was made clear by subsection (4). It made no sense to interpret that subsection as satisfied by an interlocutory decision: it used the words “must deal with cases” as meaning “must decide cases”—substantive decisions were made on consideration of the evidence whereas interlocutory decisions could or could not have been—and the phrase had to have the same meaning in subsection (3). That interpretation was also consistent with subsection (5) which authorised the Secretary of State to make rules as to the number of members of the Board who could comprise a panel to deal with, ie to decide, cases. It did not however follow that the Board was bound to give weight to the evidence contained in any document given to it by the Secretary of State. It could decide that the evidence was of great, or little, or negligible, or even no evidential value. In making that appraisal it would be considering documents as required by section 239 of the 2003 Act. That section did not qualify the inherent power of the Board to decide what if any weight was to be given to any evidence it considered.

His Lordship went on to say that the reference to “the circumstances of the offence as established in court” in the relevant part of Prison Service Order 6000 made it clear that the prohibition of pre-trial prosecution evidence related to offences for which there had been a conviction or guilty plea. Not only was that interpretation plain on the wording it was also the most sensible interpretation. The reason for the restriction was obvious. There could be significant differences between some evidence and the account of the facts of an offence accepted by the court. As an obvious example, a judge could have accepted in his sentencing remarks that the victim of an assault had provoked the assault, notwithstanding the evidence of the victim that the assault had ben unprovoked. The effect of the prohibition was that the Board would normally be confined to the sentencing remarks of the judge. It was essential to bear in mind that it was not the function of the Board to find a prisoner guilty or innocent of any offence or other misconduct. Its function was to assess the risk that would be created if the prisoner were to be released on licence. For that purpose, the Board was required to 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 had been sentence. Similarly, the Board was required to take into account evidence as to any relevant good conduct of the prisoner whenever it took place. The pre-trial material concerning the claimant did not relate to the offences for which the sentence in issue had been imposed and, accordingly, had been properly included in dossier provided to the Board which had in turn been bound to take it into account.

KING J agreed.