Neutral Citation Number: 2012 EWHC 827 (Admin)

Case No: CO/11789/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Manchester Civil Justice Centre
1 Bridge Street West
Manchester
M60 9DJ

Date:   5th April 2012

Before :

HIS HONOUR JUDGE GILBART QC 
HONORARY RECORDER OF MANCHESTER
(sitting as a deputy High Court Judge)
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Between :
	THE QUEEN 
(on the application of MIEREK WESZKA)	Claimant	
	- and -		
	THE PAROLE BOARD
	Defendant

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John Walsh (instructed by Forbes, Preston) for the Claimant
Adam Fullwood (instructed by The Treasury Solicitor) for the Defendant

Hearing dates: 22nd March 2012
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JUDGEMENT
(approved by the Court)
JUDGE GILBART QC: 
1.	In this matter, the Claimant seeks to quash a decision of the Parole Board of 5th September 2011 that it did not direct that the Claimant should be released on licence. Permission was granted by HH Judge Stewart QC, sitting as a deputy High Court Judge, on 29th December 2011.
2.	I shall deal with matters as follows
(1)	The background facts
i.	Original sentence
ii.	Release on licence
iii.	Recall to prison and grounds
iv.	Arrest and prosecution for assaults on partner
v.	The hearing at Preston Crown Court
(2)	Proceedings before the Parole Board
(3)	The decision of the Parole Board
(4)	The grounds of challenge
(5)	Legal principles
(6)	Discussion and conclusions.
(7)	Order and rulings on costs and permission to appeal.

A	THE BACKGROUND FACTS
Original sentence. 
3.	On 7th December 1999 the Claimant appeared at Preston Crown Court and pleaded guilty to wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861. As it was his second conviction for that offence, he received a sentence of life imprisonment, with a minimum term being fixed under section 28 of Crime (Sentences) Act 1997 at 5 years. The case involved an attack by the Claimant and others on another man with whom he was involved in a feud. The claimant’s group went looking for him. They were armed with a shotgun, a spike and a baseball bat, and the victim was wounded by the shotgun.

Release on licence . 
4.	He was released  on licence in 2003. The Parole Board then noted that he had done well in prison and that he presented a “ suitably low risk to the public to be released immediately.” The conditions required him, among others,  (condition 4) to reside only where approved by his probation officer and (Condition 7) not to approach or communicate with the (male) victim of his attack, or his family, without prior approval of his Probation Officer.
Recall to prison and grounds
5.	 On 17th November 2010 the Secretary of State, acting under section 31(1) Crime (Sentences Act) 1997 revoked the licence. She did so on the following grounds
“This is to inform you that your life licence was revoked by the Secretary of State on 8 November 2010 under the provisions of section 32(1) of the Crime (Sentences) Act 1997.
The Secretary of State considered that it was necessary to take this action because of information received from the Probation Service that information was received from the Police which suggested that you were not residing at (address given).Furthermore, the Police are also seeking to arrest you in connection with an alleged offence against your partner and believe that your partner is at a high risk of further
harm from you. Therefore you were in breach of condition 7 of your Life Licence. The Probation Service considered that your risk of harm and re-offending had now increased and that you should be recalled to prison custody.
These developments indicate to the Secretary of State that your performance on life licence gives substantial cause or concern. Having regard to all the circumstances, particularly the offence for which you were sentenced to life imprisonment, the Secretary of State cannot be satisfied that your continued presence in the community constitutes an acceptable risk (sic).
It has been decided, therefore, that your life licence should be revoked and that you should be recalled to prison.”
6.	The reference to Condition 7 was plainly ill considered, since that condition related to the victim of the offence for which the Claimant had been imprisoned in 1999, and there was no evidence that there had been any contact with him. The alleged offences had been committed against his (female) partner. It is to be noted also that as at November 2010 it was not suggested that he had committed any other offences.
7.	Arrest and prosecution for assaults on partner. On 3rd November 2010, an argument took place in which the Claimant accused his partner of having been unfaithful to him. On the following day a 999 call was made to the Police by her mother after her the complainant had gone to her house. The complainant then spoke to the Police. She alleged that he had beaten her badly during the evening of 3rd November  and then continued overnight until then next day. The Police attended, and found the partner to be injured. Her face was bruised, and she was walking with a limp. She made a witness statement to the effect that he had assaulted her repeatedly, and had threatened to disfigure her. He had demanded that she admit she had been having an affair, and then punched her repeatedly through the night for a period of about 12 hours. She alleged that she had sustained injuries to her face, mouth and legs. She stated also that she had been assaulted on other occasions in the previous few days, and had been assaulted many times before, but had not complained to the police before because 
“ I was scared, as he is on a life licence and would go to prison and not be able to see his daughter. I am constantly scared and living in fear of him and what he is capable of and I want it to stop and move on with my life.”
8.	The Claimant handed himself in to the Police on 10th November 2010. He made a lengthy prepared statement to the Police, which contended that he had discovered she was having an affair, and while he called her some nasty names, the violence started when she kicked him. All he had done on 3rd November  was to grab her and  kick out at her after she had kicked him. He agreed that they had spent the night together, but denied her account. He accepted that there was a further exchange of verbal abuse the following morning, but said that the only force he used was to push her after she had grabbed his head, scratching him . He accepted that in so doing he may have caused her a bloodied nose. However his hands were protecting his face from her attack He denied all the other allegations, and stated that in the days following she had contacted him repeatedly by telephone, and they had on one occasion gone to the cinema together. It is right to say that information obtained by the Police shows that she had seen him after the incident.
9.	He thereafter made a no comment interview. It is right to say that subsequently some point seems to have been made by the Secretary of State that he had made “ No Comment” replies in interview. With great respect to the Secretary of State, he was perfectly entitled to do that, not least because he had just been informed that he need not say anything. Given the substantial nature of the prepared statement, it is highly unlikely that any suggestion could have been made at any criminal trial that an adverse inference could be drawn under section 34 of the Criminal Justice and Public Order Act 1994  on the basis that he had failed to answer questions.
10.	There was one other piece of particularly important contemporary evidence available to the Police, which was the record of the 999 call made by the complainant’s mother on 4th November 2010. It appears that a transcript was never served as part of the prosecution’s case against him after he was later charged with offences contrary to section 47 of the Offences Against the Person Act 1861, although passages from it were put to the Defendant in interview. The contents of that call were later put before the Parole Board. The transcript, whose accuracy was not suggested to me to be in doubt, showed that the call was made as the complainant  was sobbing and in great distress. A further call was made back to her mother by the Communications Team, by which time the Claimant was present. The complainant was said by her mother to be then hiding under the bed. She asked the Claimant “ have you seen the state you have left her in ?” to which he replied “ I should have killed her………..”
11.	The hearing at Preston Crown Court On 17th May 2011 the trial of the Claimant was listed at Preston Crown Court. The complainant had not attended, and had made what is often misleadingly called a “retraction statement.” In other words she had not stated that the alleged events had not occurred, but rather that she no longer wished to support the prosecution. The prosecution offered no evidence, and the Claimant was acquitted. However the Court made a Restraining Order under section 5A of the Protection from Harassment Act 1997, prohibiting him from contact with the complainant save for the arrangement through named persons of contact with his daughter.

B	PROCEEDINGS BEFORE THE PAROLE BOARD. 
12.	The question of the Claimant’s release was referred to the Parole Board by the Secretary of State.  A dossier was prepared for the proceedings, and served on the Claimant. It contained the original reports and information before his original hearing in 2003, and a further report prepared for the new Parole Board proceedings . The breach of licence alleged by the Probation Officer who was his Offender Manager was that he was not living at the approved address (which was the address where the alleged assaults had occurred). She recorded (as at 8th November 2010, so before his surrender to the Police)  that he was being sought in connection with the alleged assaults. Other material served related to descriptions of the offence for which he had received the life sentence, of the alleged assaults, and an assessment of the risks of his committing further offences which might cause serious harm to others. 
13.	On 26th November 2010, Intensive Case Management Directions were given relating to the submission of further reports. On 5th January 2011 the Chair of the Panel directed that the Panel be given further information as to the circumstances of the assault allegations, the outcome of the prosecution, and a copy of the complainant’s original witness statement, and of her “ retraction statement.” On 7th February 2011 the hearing arranged for 15th February 2011 was adjourned until after the trial of the allegations. 
14.	The hearing actually took place on 22nd August 2011. By the  stage that the hearing began, the material being put before the Panel amounted to 181 pages. Part included the witness statements served in connection with the Crown Court proceedings, a copy of the interview transcript, and a further witness statement, which was from a neighbour, and appears to have been unused material from the criminal proceedings. Part consisted of material served on the day of the hearing, namely
(1)	a transcript of the telephone calls referred to above
(2)	material obtained at least one week earlier, consisting of a Police Intelligence Report on crimes said to have been committed by the Claimant. It included details of matters for which he had been arrested, all of which (apart from the latest assault allegations) related to arrests in 1999 or before. However it also included accounts of his being suspected of having committed other offences of threatening others with firearms (2004), uttering threats to kill to witness in an impending trial (2006), kidnapping (in 2007) and supplying cocaine (in 2007). It also, in relation to the incident involving his partner, indicated a sustained period of violence, a threat to kill and subsequently expressions of fear by her of retribution from the Claimant and his associates.
(3)	A copy of E mail traffic, which showed that as late as 28th July 2011 Mr Neil Corry, who was to represent the Secretary of State at the hearing, was seeking information about what had happened to the assault charges, and related charges, relating to the incident in October 2010. He concluded his E mail of that date to the Crown Prosecution Service in Lancashire by saying
 “ Mr Weszka’s hearing is in three weeks time. I appreciate that it may take a week to summon his file, and that your workload must already be onerous: please reply as swiftly as possible to preserve me from allegations of procedural unfairness!” (his punctuation)
15.	As noted already that information about other offences alleged to have been committed by the Claimant was only served on the morning of the hearing. Mr Corry’s opening submissions relied heavily upon the Secretary of State’s case that the Claimant’s account of what happened at the time of the alleged assault was not to be believed. It also contended that, while the counts on the indictment were not proceeded with, yet the Restraining Order was made. He drew on the information from the Police about other suspected offences to show that the actuarial assessment of the risk of reoffending was understated. He argued that the Claimant should not be released, contending that he presented a more than minimal risk of harm to others, in the case of intimate relationships, “ the use of instrumental violence (sic)”  deficient thinking skills and perhaps emotional well being. I understand that inelegant phrase “instrumental violence” to mean that the violence used was not retaliatory or impetuous, but deliberately inflicted in pursuit of some objective.
16.	The Claimant was represented by a legal executive. She is recorded by the Parole Board decision as having argued that while she accepted that the recall into custody was justified, the Claimant should now be released or alternatively transferred to open conditions. She made a witness statement in these proceedings, in which 
(1)	she said that she did not make any application for the complainant to be called as a witness because “ It was my view that as he had been acquitted at the Crown Court and a Restraining Order had been made, the Parole Board would not seek to go behind the acquittal and would not therefore be concerned with whether he had committed the offences but would concentrate on the risk assessment alone.” She points out that the Parole Board did not indicate in advance that it intended to rely on the witness statements served by the Prosecution in the Crown Court proceedings;
(2)	she said that she objected to the introduction of the intelligence reports. The Panel ruled that it considered that they were relevant to the assessment of risk;
(3)	she complained that the proceedings were more adversarial than inquisitorial.
17.	I was informed by Mr Walsh that the legal executive had conducted the case for the claimant on the assumption that little if any weight could attach to the assault allegations. Accordingly she did not object to the evidence about them, contained in the witness statements, being considered by the Panel. So far as the material served on the morning of the hearing, and as recorded in her evidence, she did object to its being presented and being had regard to, but the Parole Board Panel decided to consider it. However what she did not do was to seek an adjournment to allow her client and herself to deal with the material. I was told by Mr Walsh that had she obtained an adjournment, it would have involved delay for the Claimant in getting a hearing date, and he wished to gain his release on licence as soon as possible.

C	THE DECISION OF THE PAROLE BOARD
18.	The decision reads as follows, so far as is relevant to the issues before me
1	 Decision of the Panel
Your Life Licence was revoked by the Secretary of State on 8 November 2010 and your case has been referred to the Parole Board to consider whether or not the recall decision should be confirmed and to give a direction as to whether you should again be released. Release should not be directed unless the Board is satisfied that it is not necessary for the protection of the public that you remain in custody.
A panel of the Board consisting of two independent members and a judicial member considered your case at an oral hearing on 22 August 2011, was not so satisfied and, therefore, has not directed your release. It did not recommend that you should be transferred to open conditions.

This decision was based on the following reasons.

2	 Evidence considered by the Panel
The panel has considered all documents before it, including documents relating to your arrest in November 2010, subsequent dealings with the Probation Service and Lancashire Constabulary intelligence reports. It further considered updated reports from your Offender Manager (LS), your Offender Supervisor (JL ) and an undated letter (written subsequent to a meeting on 12 August 2011) from (S) of Catalyst, the Blackpool Council/Lancashire Constabulary Domestic Abuse Team.

You were represented by Mrs Kristina Kozlowski of Forbes, Solicitors, who indicated at the outset of the proceedings that you accepted that your recall into custody had been justified but that you sought immediate release. In her final submissions Ms Kozlowski asked the Panel also to consider, in the alternative, a recommendation for transfer to open conditions..

The Secretary of State was represented at the hearing by Mr Neil Corry and submitted a written view opposing release, on the basis that your conduct evidenced a risk to life and limb which is “demonstrably more than minimal” arising from live areas of risk in respect of intimate relationships, the use of instrumental violence, deficient thinking skills and, “perhaps”, emotional wellbeing. He further opposed any progressive move at this stage.”

3	Analysis of Offending
(The Panel analysed the circumstances of the offence for whish the original life sentence had been imposed. It then noted the good progress the Claimant had made in custody before his release in 2003)

4	Factors which increase or decrease risk of re-offending and harm and evidence of behaviour during release
Conditions of your licence included that you should reside only where approved by your probation officer and amongst the risk factors identified prior to your release was the question of relationships.
It appeared that for seven years until November 2010, you had complied with your licence conditions and the Probation Trust was satisfied with your behaviour, including your supervision by way of monthly appointments. You had, however, been convicted of driving without licence but the Probation Service did not consider that this affected your risk factors or necessitated recall.
On 8 November, however, Probation was informed by the Blackpool Police Domestic Violence Unit that they were seeking to arrest you for offences of common assault and threats to kill said to have occurred against your partner on 4 & 5 November. Police enquiries at (…….), your approved address suggested that you were not residing at the property. It was some days before you handed yourself in to the Police. You were considered to pose a high risk towards your partner, probation asked you to hand yourself in which you took time to do and were therefore unlawfully at large. Your licence was revoked on 8 November 2010, you were recalled to prison arriving in HMP Liverpool on 11 November 2010 and subsequently transferred to Preston.
You were charged with 2 offences of s. 47 assault occasioning actual bodily harm but, having pleaded Not Guilty and, your partner being unwilling to attend Court and give evidence, the charges were not pursued. Nonetheless the CPS papers indicated a substantial spread of injuries including bruising and/or swellings to both eyes, cheek bone, left arm, left thigh and right shin and as a consequence the Judge gave you a five year Restraining Order.
Following your arrest, you made formal complaint against your Offender Manager taking objection to what you suggested was her advice to plead guilty to the charges against you and save (the partner) the stress of having to give evidence against you.
Police intelligence in relation to the incident indicated a sustained period of violence, a threat to kill and subsequently expressions of fear by her of retribution from you and your associates. Further intelligence revealed allegations between 2004 and 2007 that you had been involved in threatening witnesses in relation to an impending trial, in a kidnapping and with associates were involved in the supply of cocaine from your parents’ home.

5	 Panel’s assessment of current risk of re-offending and serious harm/ evidence

In evidence you indicated that your relationship with your partner ……….began following a ‘one night stand’ resulting in her pregnancy with (A), now, aged 5. You had sought DNA clarification of your paternity and accepted that, but for the child, it was unlikely that a formal relationship would have followed. For some time prior to November 2010, you had been concerned at the nature of her “friendship” with a man …………and had tackled her about it on a number of occasions and had not believed her assertions that he was nothing more than a friend. On the afternoon of 3 November, you had been outside your home waiting for her return ……….and when you challenged her version of her activities, she finally admitted that she had emotional feelings for the man. Following verbal altercations, your version was that she went to strike you and you kicked her legs from under her following which, upset, she went to her mother’s nearby home. Later she returned but the following morning, there was further mutual abuse whereupon, you claimed, she scratched the back of your head and you pushed her hard in the face sending her to the floor whereupon you were bitten by the family dog.
You now accepted that your behaviour had not been justified and that you should have left, calmed down and attempted to talk over the problems. You did not now seek to minimise what you had done or to blame ( his partner   ). You did not, however, accept the extent of her allegations, particularly that the attack had gone on for a lengthy period during the night and into the morning pointing out that a neighbour’s witness statement indicated only limited noise through the “paper thin walls.” (Your partner)  had made a retraction statement, had attended Court only as a result of a witness summons. The Prosecution asked the Judge to approve their not proceeding on the basis that she was concerned at the effect on her studies of the stress of giving evidence. The Judge had agreed on the basis of the Restraining Order.
You did not consider yourself a threat either to her or to (A). If released you would be in regular touch with your Offender Manager, would consult Awareness to identify any developing issues which might lead to loss of control. You would live with your mother and accepted the need for further work to address anger issues. This work could be done in the community. You wished to emphasise that you did not consider yourself a violent man and that during the seven years on licence there had been no other incidents of violence. The five year Restraining Order would act as a catalyst as you knew that any breach would seriously compromise your relationship with (A). You
specifically denied any greater extent of assault. You were unable, however, to explain discrepancies between your original prepared statement when interviewed by the police and your evidence to the Panel. You stated that the allegations in Police intelligence with regard to other activities were untrue although you acknowledged that …………….you knew the people named in the reports.
You believed that, notwithstanding your complaints about the attitude of your Offender Manager at the time of your arrest, you could still work with her and would be fully compliant with her requirements.
You accepted that the background to your violence convictions each involved broken relationships and jealousy. The index offence involved firearms activity arising from your friendship with a woman whose relationship had broken up. Your earlier s. 18 conviction. followed your arming yourself with a knife to protect yourself, so you said, from a jealous former partner of your then girl friend. The recall assault was specifically triggered by jealousy.
If released you planned to go to College or find work although you acknowledged that in the seven years from the original release you had done little or no work nor sought courses which could have led to employment. You had cared for your daughter whilst your partner worked or attended University but had not sought work since your daughter had begun nursery and school.
You believed that your seven years of good behaviour had shown that you had learnt from the various courses undertaken in custody but accepted that on release you could benefit from courses on violence in relationships and “probably” thinking skills.
You had evaded the Police for some days following the recent assaults as you knew you would be recalled and needed to “get your head around” the implications of losing full contact with your daughter.
(LS) , Offender Manager, had been responsible for you, with a short break, since 2007 at which time you were on licence release. She was your third Offender Manager and had taken the view that, as matters were apparently proceeding satisfactorily, there had been no need for a detailed investigation with you as to your background. She had concentrated on management of, and where appropriate, reduction of the level of necessary supervision. In recent times, as (A) had gone into nursery and then to school, (LS) had been concerned as to your lack of work motivation; notwithstanding regular assurances that you would try to obtain employment. You had reported regularly, she had paid occasional home visits and there had been no indication of relationship problems. She considered that she ought to have been made aware of Police intelligence concerns.
Following the index offence she had spoken to you on the telephone on a number of occasions including advising surrender to the Police and consideration, subject to the advice of your lawyers, of guilty pleas to the assaults you admitted. You had taken exception to her advice and during a number of telephone calls had “ranted” to such an extent that she had requested the prison authorities to remove the facility for you to telephone her direct. Things appeared to have calmed down and she had agreed to re-instatement subject to your assurance that there would be no further shouting at her.
She did not recommend progression at this stage, as she considered that you minimised your recall offences and needed time to come to terms with what you had done. Even a half way point between the separate versions constituted significant, concerning behaviour. Until you gave evidence before the Panel, you had been in almost complete denial as to your behaviour insisting that you had throughout been acting in self defence. 
She considered the latest incidents to be particularly worrying as they involved violence without earlier risk factors such as drugs, alcohol or gang involvement. On eventual release, you should go to Approved Premises (a condition to which you had been opposed). Your mother’s home, to whom you wished to go, was, in any event, in an area from which you should be excluded. She believed that you should undertake 1 to 1 work with your Offender Supervisor in closed conditions and a Healthy Relationships programme supervised by a Forensic Psychologist. Your need to take responsibility for your actions and to undertake further work was the unanimous view of all agencies involved in a recent strategy meeting and was in line with the Catalyst letter which highlighted the need for (your partner) to adhere to safety plans put in place for managing your future risk on release from custody, particularly so far as your daughter was concerned.

(JL) , Offender Supervisor, had known you only since you arrived at Preston in June 2011. He considered you at present unsuitable for open conditions due to an abscond risk and believed that you would not be eligible for a Healthy Relationships programme due to the technicality of your not having two convictions involving domestic violence. You had caused no problems at Preston. He had no other direct knowledge of you and would not altogether discount the possibility of release under a “very, very robust release plan.” Commenting on the expressed view of a Panel member that you were aggressive in response to questions, he emphasised that although that might be an impression given by you, he, personally, had never seen you  “lose his cool”.

6	Conclusion
The Panel accepts that you remained in the community without relevant complaint for seven years following release from licence. Following your recall, further information has come to light both with regard to your domestic situation and unshared Police intelligence. Despite your Not Guilty pleas to the recall charges and your persistent claims to have acted in self defence, it was sensibly accepted on your behalf before the Panel, that your recall was justified and in your evidence you accepted a limited degree of unprovoked violence towards your partner in separate incidents on one day/night in November last year. The Panel did not accept your version of events and agrees with the view of your Offender Manager that you continue to minimise your behaviour and that substantial further work is necessary to reduce your risk of causing serious harm both generally and to named individuals. It found you, even allowing for the considerable stress of the hearing, to be aggressive, easily agitated and to have a total lack of insight into your behaviour. You appeared to have benefitted little from the many courses successfully undertaken by you, previously, and the Panel considers you to remain extremely dangerous. The Panel did not believe you to be truthful and considers it likely that there was truth in the Police intelligence relating to some of your behaviour and associates whilst on licence.
Accordingly the Panel neither directs release nor recommends a progression to open conditions.”

D	THE GROUNDS OF CHALLENGE
19.	Mr Walsh argued that
(1)	It was procedurally unfair, whether under Article 5(4) of the European Convention on Human Rights or generally, for the Panel to have relied on the written statement of  evidence by the complainant, without the Board having indicated that it intended to rely on them, and then itself issuing a witness summons requiring her to attend, pursuant to Rule 15(1) of the Parole Board Rules 2004
(2)	This was a case where no conclusion should have been reached that he had assaulted his former partner without her being called and his advocate having the opportunity to cross examine her
(3)	The Offender Manager’s evidence wrongly and unfairly assumed that he had committed the offences of which he had been acquitted
(4)	The Panel had been procedurally unfair in its reliance on the dossier of police intelligence.

E	LEGAL PRINCIPLES
20.	I draw the following propositions from the authorities.
21.	The hearing had to be conducted fairly – see  R(West) and R (Smith) v Parole Board [2005]UKHL 1 [2005] 1 WLR 350. At paragraph 37 Lord Bingham of Cornhill there considered the scope for oral hearings, and the scope of the duty to be fair.
“The common law duty of procedural fairness does not, in my opinion, require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. While the Board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.” (My italics)

22.	But the choice is not between (a) a hearing which is all conducted orally, with all evidence being heard orally and (b) not having an oral hearing. The Parole Board may act on hearsay evidence; see R(Sim) v Parole Board [2004] QB 1288 per Keene LJ at paragraphs 52- 57. I draw attention to paragraph 57
“That passage seems to me to be generally applicable to proceedings before the Parole Board when it is assessing risks, especially bearing in mind that recall decisions are not criminal proceedings within the meaning of Article 6: R (West) –v- Parole Board [2002] EWCA Civ 1641; [2003] 1 WLR 705. 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.”
23.	There is a general power to receive evidence even if it would be inadmissible in a court- see Rule 18 of the Parole Board Rules 2004. That is of course subject to the principle that the hearing must be fair.
24.	In R (Brooks) v Parole Board [2004] EWCA Civ 80, the Court of Appeal considered whether the Claimant in that case, who had been convicted of rape of another woman, and had then been released on licence, had attacked and raped a woman SL who was his partner after his release. After she had made allegations against him, she asked if she could withdraw the charges. He was never charged or prosecuted. The Parole Board heard evidence from the offender man ager of what SL had told her. It did so after she had not attended the hearing. Its decision to do so was upheld by the Court of Appeal (Kennedy and Wall LJJ, Clarke LJ dissenting). This account appears in the judgement of Kennedy LJ
17  At the hearing on 20th December 2002 (SL) was not present. The Parole Board Panel took the view that she had been contacted and refused to attend, and as the Board itself had no power to compel her attendance the hearing should proceed in her absence, and the claimant's solicitor agreed to that course (see the statement of the chairman of the panel, Judge Bing, paragraph 9). 
18  On behalf of the claimant it was submitted that the panel should not receive hearsay evidence of the claimant having raped (SL) on 22nd March 2002. Counsel for the Secretary of State submitted that the right course was for the panel to hear all of the evidence, and then to decide what to make of it, and that was the course which the panel decided to follow. No one, it seems, even suggested that the panel should direct the Secretary of State to seek a witness summons from the County Court or the High Court in reliance on CPR part 34.4, and certainly there was no request for an adjournment to enable that course to be followed.  
19	The hearing did not conclude on 20th December 2002, but the panel did hear oral evidence from (others), and it was adjourned to 6th January 2003 when further submissions were made. The written representations of the claimant were, of course, part of the material before the panel.”

25.	At paragraph 32 ff Kennedy LJ addressed what should have happened in that case when the witness had not attended. It is instructive on the principles to be applied. 
32	 Against that legal background I return now to the facts of this case, and there are, as it seems to me, three questions now to be considered, namely 
(1) Whether more should have been done, and if so by whom, to secure the attendance of (SL) to give oral evidence before the Parole Board panel:
(2) Whether, in the absence of (SL) , the panel should have excluded entirely from its consideration the evidence of what she had apparently said to the two probation officers and to a police officer about the events of 22nd March 2002:
(3) Whether the panel was right to attach any significance to the view formed by the probation officers as to SL’s credibility."
As to the first of those questions, it seems clear to me that there were shortcomings. In the first place there seems to have been a lack of clear understanding as to whose duty it was to arrange for the attendance of SL before the panel. In my judgment the position in law is clear. The Secretary of State was required by section 32(4) of the 1997 Act to refer the claimant's case to the Parole Board after his licence was revoked. The claimant's solicitors asked for an oral hearing, and that was agreed. It was then for the parties to decide whether they wished to call any witnesses, or simply to present their cases by reference to documentary material. That is clear from Rule 7 of the Parole Board Rules 1997. The parties were the prisoner and the Secretary of State (see Rule 1). In fact it was the claimant's solicitors who first suggested that SL should be called, but they did not want to call her. They wanted her called by the Secretary of State, and in so far as it was suggested on behalf of the Secretary of State in the letter of 7th December 2002 that it was for the Parole Board to arrange for (SL’s) attendance that was incorrect. The chairman of the Parole Board panel appointed pursuant to Rule 3 was entitled to give directions pursuant to Rule 9, and those directions could, in my judgment, have included a direction to the Secretary of State to arrange for the attendance of (SL), if necessary by obtaining a witness summons pursuant to CPR 34.4. The chairman of the panel does not seem to have been fully alive to that possibility, no doubt because it was virtually virgin territory. On 20th November 2002 he did give directions to the Secretary of State under Rule 9, and included a request (not a direction), said to be given under Rule 7, that ……. and (SL) should attend.
33	Generally speaking it seems to me that unless a request has been made by or on behalf of one of the parties the chairman of the panel should be slow to direct the Secretary of State to produce a witness for cross-examination, especially if he or she is a witness upon whom the Secretary of State does not intend to rely, because the hearing is going to take place "in the context of an adversarial procedure", but that was not a difficulty which arose in this case.

34	At the first hearing on 27th November 2002 the chairman directed that SL should attend "if possible" at the adjourned hearing on 20th December 2002. That direction was addressed to the Secretary of State, as is clear from the Parole Board letter of 11th December 2002, but if a witness summons was going to be required it is doubtful if the time scale was realistic. The directions made on 27th November 2002 resulted in Mr Hunter's letter of 9th December 2002 which was clearly written without regard to the possibility of a witness summons. The tone of the letter is commendably sympathetic, but, as Mr Fitzgerald submitted, it did in reality tell SL that she need not attend if she did not want to do so. In my judgment as it was already known that SL was reluctant to confirm in public her allegations against the claimant the letter of 9th December 2002 should have been accompanied by a witness summons. 

35	However, by 19th December 2002 it was clear to everyone involved - the Secretary of State, the claimant's solicitors and no doubt the Parole Board panel, that SL did not propose to attend on the following day. That had certain advantages so far as the claimant was concerned, and his solicitor had the opportunity overnight to consider the situation. The case against the claimant was plainly going to be less strong than it would have been if SL had attended and confirmed what she had apparently said to the probation officers and to the police. Tactically any competent advocate representing the claimant might well conclude that it would be in the claimant's interests to press for the hearing to proceed without SL, in the hope that it might be possible to persuade the panel either to exclude entirely the hearsay evidence of rape, or at least to give it relatively little weight. That was the course which on 20th December 2002 the claimant's solicitor decided to follow, and it can be said that the present proceedings are little more than an attempt to explore the other alternative which was then available. The claimant's solicitor could have asked the chairman of the panel to direct the Secretary of State to issue a witness summons, and to adjourn the hearing to enable the summons to be served. Neither the Parole Board itself nor the Secretary of State can be criticised for not seeking a witness summons at that stage. They were both ready to proceed on the information which was available, and the claimant's solicitor having chosen, no doubt with the agreement with her client, to agree to that course, it seems to me that this court should not now entertain any criticism of the decision to proceed.”

26.	Wall LJ said at paragraph 93 
“Furthermore, I would be concerned, for the reasons I have given in paragraph 75 of this judgment, if the message from this case were to be that alleged victims of sexual or physical assaults by prisoners on licence were, as a matter of routine, to be compelled to give evidence before the Parole Board. Whilst the procedure for applying for witness summonses is now clear, each case must, in my judgment, be assessed on its particular facts.”

27.	It follows that there is no hard and fast rule that evidence of an attack on a person X can only be relied on by the Parole Board if X has been called to give evidence. Further, Brooks shows that it is rarely for the Parole Board to  determine that such a witness must be called. It is for the parties to decide whether or not the presence of a witness is to be sought.
28.	Rule 15 of the Rules then applying (Parole Board Rules 2004) enabled the Panel to call a witness
“15.   	(1) Where a party wishes to call witnesses at the hearing, he shall make a written application to the Board, a copy of which he shall serve on the other party, within 20 weeks of the case being listed, giving the name, address and occupation of the witness he wishes to call and the substance of the evidence he proposes to adduce.
(2) Where the Board wishes to call witnesses at the hearing, the chair of the panel should notify the parties, within 21 weeks of the case being listed, giving the name, address and occupation of the witness it wishes to call and the substance of the evidence it proposes to adduce.   
(3)  The chair of the panel may grant or refuse an application under paragraph (1) and shall communicate his decision to both parties, giving reasons in writing for his decision in the case of a refusal.
(4)  Where a witness is called under paragraphs (1) or (2), it shall be the duty of the person calling the witness to notify the witness at least 2 weeks before the hearing of the date of the hearing and the need  to attend.”

29.	It is for the court to decide what procedural fairness requires, but the court must consider what is fair in the context of the Panel’s approach to an issue of fairness in the circumstances identified and evaluated by the panel:  see R (Osborn and Booth) v Parole Board [2010] EWCA Civ 1409. This court must consider whether the procedure adopted was fair, and whether it permitted the Claimant to have a reasonable opportunity to take any points he could properly take to answer the case brought against him.

F	DISCUSSION AND CONCLUSIONS
30.	In considering whether a hearing has been fair, one must address the principle set out by Lord Bingham of Cornhill in R(West) and R (Smith) v Parole Board [2005]UKHL 1 [2005] 1 WLR 350 at paragraph 37, and italicised above. 
“The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.”
As R (Osborn and Booth) v Parole Board  shows , given the fact that decisions by the Parole Board affect the liberty of the subject, a prisoner must have a reasonable opportunity to take any points he could properly take to answer the case brought against him.
31.	There can be no blanket one size fits all approach. One must look at the overall picture, give weight to the Panel’s own view of fairness, and decide whether the effect of the hearing and the procedures adopted was fair. When considering whether the admission or reliance on evidence has been fair, much will depend on the significance of the evidence to the issues involved,  to its nature and quality, on the notice given to the prisoner of its existence and nature, and whether s/he has a reasonable opportunity of dealing with it.  Then one must stand back and ask whether, looking the matter overall, the procedure adopted was fair. Against that background I turn to the grounds of claim.
32.	I do not consider that there is anything in the first three grounds. It was for the Parole Board to determine whether or not he had assaulted his partner on the evidence before it. It is commonplace in the criminal courts for allegations of domestic violence to be withdrawn by complainants who have decided, for whatever reasons, that the emotional costs to themselves and their children outweigh the determination to pursue a complaint to the point of trial. Many astute prosecutors will usually insist that the matter is listed for trial, and seek the issue of a witness summons to compel that the complainant give evidence, not least because of the effect of the sections 119-120 of the Criminal Justice Act 2003 on the evidential status of witness statements by hostile or reluctant witnesses. However that is not always possible. In the event, she had decided not to give evidence, but the Court was satisfied that she required the protection of a restraining order., and was thus entitled to make an order under section 5A of the Protection from Harassment Act 1997 ( as amended). 
33.	Save in a case where a statutory exception applies, an acquittal cannot amount to evidence that the Defendant did not commit the crime alleged; see the long followed rule in Hollington v F.Hewthorn & Co.Ltd [1943] KB 587. 
34.	Given the fact that there is no rule requiring that such evidence be given orally at the Parole Board, it follows that the Panel was entitled to act on the evidence in the written statements relating to the incident with his partner, provided that the hearing was procedurally fair. The Claimant had had ample notice that the case against him relied on the fact that he was alleged to have assaulted his partner, and he was given the opportunity to give evidence before the Board to rebut the allegations. If the Claimant wished the complainant to give evidence so that she could be challenged, then he could have asked under Rule 15 that she be called to give evidence. He did not do so. Had the matter stood there, I would have considered that there was nothing unfair or improper about the Parole Board’s treatment of this issue. Such criticisms as I have on this ground relate to the conduct of the Claimant’s case, where some quite unwarranted assumptions were made about the power of the Parole Board to consider this issue, and where the misconception ran right through the presentation of the Claimant’s case before me that it was a ground of challenge that the Panel had chosen to give her allegations weight. If the Panel was entitled to consider them (as it was) then the weight it gave to them was for the Panel.
35.	On the third ground, the offender manager was entitled to her view. If the Claimant disagreed with it, his representative could cross examine her.
36.	I turn now to the fourth ground of challenge. I start by noting that the Panel referred to the Police intelligence at sections 4 (last paragraph) and 6, and appear to accept it as indicative of behaviour on his part to be taken account of when considering whether there were factors which increased the risk of his reoffending and causing harm. That issue went directly to the statutory criterion to be found in section 239(6) of the Criminal Justice Act 2003
“ (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.”
37.	When the Claimant’s solicitors sent a letter before action under the Pre Action protocol, the Parole Board Secretariat contended that the police intelligence did “not play a fundamental part in the Panel’s decision.” I reject that approach. If it was wrong to have admitted or relied on the evidence, then the right test is to ask whether it played some part, and if it did, whether one can safely say that the decision would have been the same had it not been admitted or relied on. I refer to the majority judgement of Lord Scott of Foscote in Lawrence v. The Attorney General (Grenada) [2007] UKPC 18: [2007] UKPC 18, [2007] 1 WLR 1474 at paragraph 65
I am unable to say that the same conclusions would or should have followed even if there had been no such errors; on the contrary. The relevant question is not whether the Tribunal "could properly" hold the letter of 11th August 1999 to be misbehaviour or whether the appellant has shown that the Tribunal's errors in approach "sufficiently influenced their recommendation" (see paragraphs 14 and 17 of the opinion of the majority of the Board). It is whether the Tribunal would, if its members had properly directed themselves by reference to the relevant factors, undoubtedly have arrived at the same decision as they did. Lewis in Judicial Remedies in Public Law (2004), paras. 11-026 to 11-029 reviews the relevant authorities ……………….and concludes that: 
"For these reasons, the courts should not refuse relief unless the same decision would undoubtedly be reached irrespective of the error, and there is a clear countervailing public interest in not quashing the decision".
Among the authorities illustrating this principle are R v. Inner London Coroner, ex p Dallaglio [1994] 4 AER 129, 155e (where Simon Brown LJ was "not prepared to say that a fresh coroner would be bound to" reach the same decision), Simplex GE (Holdings) Ltd. v. Secretary of State for the Environment [1988] 3 PLR 25, 42 (where Purchas LJ said: "It is not necessary for [the claimant] to show that the minister would, or even probably would, have come to a different conclusion. He has to exclude only the contrary contention, namely that the minister necessarily would still have made the same decision") and Raji v. General Medical Council [2003] 1 WLR 1052 (PC), para. 17 (where the Privy Council said that "the possibility cannot entirely be excluded that Dr Raji was disadvantaged by the flawed procedure"); cf also R (Amin) v. Secretary of State for the Home Department [2004] 1 AC 653, paras. 39 per Lord Bingham of Cornhill and 52, per Lord Steyn. 

38.	The Board also argue that “ despite your client’s concerns he did not request an adjournment when the police evidence was produced. This would have allowed time for the provenance to be verified and to give consideration to its contents.” Mr Fullwood wisely eschewed the letter writer’s approach on whether the evidence was “ fundamental.” He contended that the evidence was admissible, and that absent a request for an adjournment, its admission could not be complained of. I shall look at this under the broad headings set out above.
39.	The Panel’s view of whether to admit the evidence. Nothing appears in the Decision which addresses this issue, and this court has nothing before it which indicates what the Panel thought or why.
40.	The significance of the evidence to the issues involved, If that evidence was accepted, it would inevitably have some effect on the Parole Board’s view of risk, and did so in this case. That was how the Secretary of State had argued the Panel should take it into account. Given the fact that the intelligence included allegations of involvement in serious crime, including kidnapping, it was plainly capable of having an influence on the assessment of the  risk of future offending and of harm being caused to others, and the Panel’s decision shows that that is exactly what it did. It must in my judgement also have had a considerable potential effect on how the Panel assessed the credibility of the evidence of the Claimant about what had happened between him and his partner. That is a factor which argues strongly in favour of giving a prisoner and his advisers sufficient time to address it.
41.	 The nature and quality of the evidence. It consisted effectively of police recording of information provided, or suspicions held, about the Defendant. No-one had any way of knowing how this evidence had come forward, nor from whom it had emanated. It was at best first hand hearsay, but may well have been second hand, third hand or even more remote to the author of the entries in question. That is a powerful factor against its introduction, when its effect may be to deprive a man of his liberty.
42.	The notice given to the prisoner of its existence and nature. In practical terms the way in which the evidence came forward gave the prisoner and his advisers no notice at all. That is a factor which leans heavily against its admission.
43.	Whether s/he has a reasonable opportunity of dealing with it. Some evidence requires a very short adjournment- sometimes just an hour or so- to enable the prisoner to prepare his/her rebuttal. Other evidence will require longer. Production in the way that it happened here gave the prisoner no chance of dealing with it effectively at all. The most that can be said is that the legal executive at the hearing did not go on and ask for an adjournment. In this court’s view, an adjournment was necessary to consider the grounds for opposition to its admission, as well as to consider its weight and veracity, and the Panel should have adopted that approach.  I am struck by the fact that the Panel nowhere seeks to justify its admission of this evidence without any notice being given to the Claimant. In my judgement the fact that a clerk (not a solicitor or counsel) did not then go on and ask for an adjournment is insufficient to render this unfair procedure fair. 
44.	Looking at the matter overall. This was potentially important evidence. Its admission would assist the Panel in assessing risk, but would also have an adverse effect on the position of the prisoner. The nature of the evidence was not to rely on any alleged offence which had even been put to the Claimant before, so that this was the first occasion on which he knew of the allegations. That being so, he could not be expected to mount an appropriate case about such evidence there and then. In my judgement this evidence was produced at such a late stage that the Claimant had no realistic opportunity to address it effectively. While the Claimant would have been aware of the contents of the telephone call (which had been put to him in his PACE interview) there is not the slightest indication that he had been given any notice at all of the serious allegations about his having committed grave offences in the years 2004 to 2007, nor any intimation whatsoever that such a case would be made. Had that been done in a proper and timely way, he and his advisers could have considered whether to seek directions under Rule 8 (below) or give notice that he wished to call evidence under Rule 15.  
45.	The evidence consisted of material which appeared to be based only on information given to the Police, without any knowledge of the source or provenance, and one must be forgiven for asking why, if it was of significance, that it was first relied on in the summer of 2011 and then without notice. I am not willing to rule that such evidence could never properly be admitted, although its nature, quality and provenance are all matters which would make a decision to admit it a difficult one. But all those matters go also to whether it could be fair to admit such potentially important evidence without warning on the day of the hearing. The nature quality and provenance all required consideration by the Claimant and his advisers.
46.	The Panel was bound to consider whether such evidence could fairly be admitted in the light of the objection made. Given the way in which it had emerged, it would have been unfair to allow it to be admitted unless either it was admitted, or sufficient time was given to enable (in the words of the Parole Board letter) time for the provenance to be verified and to give consideration to its contents. If that evidence was accepted, it would inevitably have a significant effect on the Parole Board’s view of risk, and did so in this case. It must potentially also have had a considerable effect on how the Panel assessed the credibility of the evidence of the Claimant about what had happened between him and his partner. Rule 8 enables the giving of directions 
8. 	(1) Subject to paragraph (4), the chair of the panel may at any time give, vary or 
revoke such directions as he thinks proper to enable the parties to prepare for the consideration of the prisoner’s case or to assist the panel to determine the issues.

(2)  Such directions may in particular relate to -

(a) the timetable for the proceedings,

(b) the varying of the time within which or by which an act is required by these Rules to be done,

(c) the service of documents,

(d) as regards any documents which have been received by the Board but which have been withheld from the prisoner in accordance with rule 6(2), whether withholding such documents is a necessary and proportionate measure in all the circumstances of the case, and

(e) the submission of evidence.

47.	As far as I am aware, no directions had been sought which enabled evidence to be put in at the last minute. In my judgement the Parole Board Panel should not have thought it fair to permit its adduction, which could have affected (and did so) its assessment of risk, and therefore whether he should continue to be imprisoned, without at least having to be persuaded that an adjournment to consider the evidence was not required. There is also no assessment at all in the Panel’s decision of the provenance or reliability of the intelligence or of its veracity, beyond its establishing that the Claimant knew persons mentioned in the reports. On any view that conclusion is incapable of justifying a finding that the intelligence was true, let alone that he had committed all or any of the offences.  When evidence such as this is produced late, and is objected to, as this was, in my judgement the Panel could not proceed without at least considering the issues of provenance, reliability and veracity.  
48.	In this court’s view, an adjournment was necessary to consider the grounds for opposition to its admission, as well as to consider its weight and veracity.  I am struck by the fact that the Panel nowhere seeks to justify its admission of this evidence without any notice being given to the Claimant. In my judgement the fact that a clerk (not a solicitor or counsel) did not then go on and ask for an adjournment is insufficient to render this unfair procedure fair. 
49.	I also draw comfort in this regard from the fact that Mr Corry, for the Secretary of State, was concerned about procedural fairness some weeks earlier. He was concerned about the late production of evidence about a matter where the Claimant was on notice, whereas this related to matters where nothing whatever had been intimated before the day of the hearing.
50.	It follows that the procedure adopted was procedurally unfair. Given the terms of the decision, I find myself unable to say that the decision would have been the same had the evidence not been admitted, and I therefore quash the decision and require the Parole Board to redetermine whether the Claimant should be released. 
51.	I have not decided in this judgement that the evidence of Police intelligence could never be admitted. That will be a matter for the Parole Board to consider in the light of the evidence it receives, and the submissions it hears, on whether the material submitted by the Police is capable of attracting any weight, and if so, whether it has been answered by the Claimant. 

E	ORDER AND RULINGS ON COSTS AND PERMISSION TO APPEAL
52.	Paragraphs 1 to 51 of this judgement were circulated in draft to Counsel. I invited typographical corrections, submissions on the order to be made, costs, and any applications for leave to appeal.  I am grateful to Mr Walsh and Mr Fullwood for making written submissions to me on those issues. 
53.	I have amended the typographical errors. I have also, having considered Mr Fullwood’s submissions, inserted the words “ potential”  and “potentially” in paragraphs 40 and 46 respectively when addressing the effect on the Claimant’s credibility before the Panel. I have also amended paragraph 29 in the reference to the test in R(Osborn and Booth) v Parole Board [2010] EWCA Civ 1409.
54.	Mr Fullwood argues that the Order of this court should be
(1)	The claim for judicial review is allowed. 
(2)	The Defendant’s decision dated 5 September 2012 is set aside. 
(3)	The Defendant shall invite the Secretary of State for Justice to refer the Claimant’s case back to the Defendant immediately and upon receipt of such a reference, will convene an oral hearing as soon as practicable in line with its Listing Prioritisation Framework. A new panel to reconsider the Claimant’s application for re-release at an oral hearing as quickly as possible. 
(4)	The Defendant shall pay the Claimant’s costs to be assessed if not agreed. 
(5)	There shall be a detailed assessment of the Claimant’s CLS Funding costs. 
(6)	Permission to appeal to the Court of Appeal. 
(7)	Paragraph 2 and 3 of this order shall be stayed pending the outcome of the appeal. 
55.	Mr Walsh supports paragraphs  1-5 but disputes paragraphs 6 and 7
56.	Mr Fullwood argues that leave to appeal should be granted on the following grounds
(1)	The Parole Board was bound to admit the evidence of the Police Intelligence
(2)	The Court is not entitled to consider whether the decision would have been the same if the evidence had not been admitted or relied upon, and is effectively second guessing whether the admission would have affected the consideration of risk
(3)	The test I used (as per Lawrence) was the wrong test;
(4)	It was wrong for me to consider whether the admission of the evidence could have affected credibility
(5)	I am wrong to criticise the Panel for deciding to admit the evidence without enquiring into its provenance or without giving the Claimant a chance to deal with it
(6)	If the Claimant did not ask for an adjournment, it was not for the Panel to decide to adjourn. It is argued that my approach creates a possibility that all future panels will be required to adjourn hearings if further evidence is produced even when the advocate does not ask for an adjournment. That could lead to increased delay and costs.
(7)	I have criticised the reasoning of the panel when there was no reasons challenge. 
57.	I remind myself that the tests under CPR 52.3 (6), for granting permission to appeal are 
(1)	whether there is a real prospect of success; or
(2)	There is some other compelling reason why the appeal should be heard.
58.	Taking Mr Fullwood’s  grounds in turn
(1)	This case is not about whether the evidence is capable of admission, and I have expressly avoided reaching any conclusion that it was inadmissible. It is about whether, in the circumstances in which the evidence was admitted, the procedure was fair.
(2)	The panel considered that the evidence did affect the issue of risk. It follows that, if the procedure for its acting upon it was unfair, the fairness of the proceedings was potentially affected. The Lawrence test is appropriate when the court is considering if it can be sure that the unfairness (if it finds there was) affected the outcome.
(3)	See above
(4)	The potential effect of evidence on credibility is always potentially relevant when a court or tribunal is deciding how to proceed in the circumstances such as those before the Panel. I have made no finding that its effect prevents the admission of the evidence, but only that it is relevant to the question of whether it could be admitted at the eleventh hour without notice, and without any effective opportunity for consideration.
(5)	As both advocates accepted, and as the authorities make clear, it is for this court to consider whether the procedure was fair, but in the context of the panel’s view of that topic, albeit not being bound by it. The issues which I identified went to that issue of fairness. However the Panel never addressed that point. The Court cannot be prevented from addressing it (as it has to)  by the Panel’s lack of consideration of it.
(6)	This ground seeks to erect a straw man. Nothing in the judgement gets close to implying that such a course must always follow, or even should usually do so. The question is whether in this case the effect on the proceedings of the admission of this evidence was such as to render them unfair. As I point out at paragraph 43, the need for an adjournment differs from cases to case, as does the length of the adjournment if one is required. If extra delay and costs would be caused by the adjournment of a hearing, that is a matter to be addressed by the Panel when hearing and considering submissions on whether or not to admit tardily produced evidence despite the giving of directions. There is nothing in this Panel decision which addresses that issue.
(7)	This ground shows a misunderstanding of the judgement. I have not quashed the decision because of a lack of reasoning, or a defect in it. But the Court was bound to consider if the proceedings were fair, and in doing so, must consider any reasons given by the panel for admitting the evidence despite the objections - see R (Osborn and Booth) v Parole Board [2010] EWCA Civ 1409 at paragraphs 39-42. If the evidence was properly admitted in a manner consistent with fairness, nothing in this judgement contends that the panel’s reasons for reliance upon it in assessing risk were objectionable or deficient, nor was such a case made to me. 
59.	Accordingly I do not consider that any of the grounds have a reasonable prospect of success. Further this decision raises no questions of wider public importance meriting consideration by the Court of Appeal. 
60.	It follows also that there is no basis upon which a stay could be granted.
61.	The Order of this Court is therefore
(1)	The claim for judicial review is allowed. 
(2)	The Defendant’s decision dated 5 September 2012 is set aside. 
(3)	The Defendant shall invite the Secretary of State for Justice to refer the Claimant’s case back to the Defendant immediately and upon receipt of such a reference, will convene an oral hearing as soon as practicable in line with its Listing Prioritisation Framework. A new panel to reconsider the Claimant’s application for re-release at an oral hearing as quickly as possible. 
(4)	The Defendant shall pay the Claimant’s costs to be assessed if not agreed. 
(5)	There shall be a detailed assessment of the Claimant’s CLS Funding costs.