Pearson, R (on the application of) v Parole Board [2003] EWHC 1391 (Admin)

Case No 5333/2002

[2003] EWHC 1391 Admin

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday 20 June 2003

Strand,

London, WC2A 2LL

Before

THE HONOURABLE MR JUSTICE WILSON

Between

RClaimant

On the application of PEARSONClaimant

THE PAROLE BOARDDefendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Mr Jonathan Challinor (instructed by Messrs. Clark Brookes, solicitors of West Bromwich) for Claimant

Miss Kristina Stern (instructed by The Treasury Solicitor) for Defendant

Judgment

As Approved by the Court

[1]In deciding not to direct the further release of a prisoner who had been recalled to prison following the revocation of his licence by the Secretary of State, did the Parole Board act unfairly and therefore unlawfully in admitting before it hearsay evidence (which it ultimately accepted to be true) given by three adolescent boys?

[2]On 3 November 2001, in anticipation of Guy Fawkes’ night, a public bonfire party, with fireworks, was held at Himley Hall, Dudley, not far from where the claimant was living following his release from prison on licence. He has a history of sexual offences against boys. One of the allegations before the Board was that he took the three boys and an unidentified girl to the bonfire. This he denied: his case was that he went alone to the bonfire. The Board accepted the truth of hearsay statements of the three boys that he took them and the girl to the bonfire. In paragraph 24 below I will consider the importance of that finding in the decision not to direct his further release. I will refer to the boys as ‘the first boy’, ‘the second boy’ and ‘the third boy’; in November 2001 they were aged 16, about 16 and about 13 respectively.

[3]On 25 February 2000 the claimant pleaded guilty in the Wolverhampton Crown Court to a charge of indecent assault upon a four-year-old boy and to three charges of making indecent photographs of him. On three previous occasions he had been convicted of offences of indecency with children and on the most recent of them had been sentenced to imprisonment for 18 months. The evidence before the court was that the mother of the boy was a vulnerable woman whom the claimant had befriended; and that he had used his friendship with her in order to target the boy. For the offences the claimant was sentenced to 31 months’ imprisonment. But the court considered, for the purpose of what was then section 58 of the Crime and Disorder Act 1998 (now section 85 of the Powers of Criminal Courts (Sentencing) Act 2000), that the period for which he would, apart from that section, be subject to a licence, namely in effect the third quarter of that sentence, would not be adequate for the purpose of preventing his commission of further offences and securing his rehabilitation. Thus the court used its power thereunder to pass on him an extended sentence, by which it added to the custodial term of 31 months an extension period of five years for which he was to be subject to such licence.

[4]On 8 June 2001, having served one half of the period of 31 months in prison, the claimant was released on licence. By virtue of the extended sentence, the licence, which was in writing and served upon him, was expressed to continue until February 2007. It made clear that he would be under the supervision of a probation officer throughout that period and it identified 11 conditions with which he had to comply. The sixth condition was that he should ‘be of good behaviour, not commit any offence and not take any action which would jeopardise the objectives of [his] supervision, namely to protect the public, prevent [him] from re-offending and secure [his] successful re-integration into the community’. The ninth condition was that he should ‘not engage in any work or other organised activity or spend leisure time involving a person under the age of 18 either on a professional or voluntary basis’.

[5]In January 2002 the claimant’s licence was revoked and he was taken back into prison. He was served with a document headed ‘REASONS FOR THE REVOCATION OF YOUR LICENCE’. It said:

“You have been recalled to prison because you have breached condition 5(ix) of your licence in the following ways: 5(ix) It has been reported that you failed to not engage in any work or other organised activity or spend leisure time involving a person under the age of 18 either on a professional or voluntary basis. In that you were instructed by your probation officer to have no contact with [the first boy and his younger brother]. In addition it was reported that Social Services received two referrals regarding the aforementioned children were having contact with you. The first referral was received by your probation officer who received information that you had visited the children. The second referral was received from the Child Protection Police, stating that you were taking children, including [the first boy and his younger brother] for rides and outings in your car. It was also reported that on 11 January 2002 the core group from the case conference visited the home of [the first boy] who confirmed that you had taken him and three other children and no adults to a bonfire in Himley in Staffordshire. In view of the offences for which you were originally sentenced and your behaviour described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence.”

It was also reported that on 11 January 2002 the core group from the case conference visited the home of [the first boy] who confirmed that you had taken him and three other children and no adults to a bonfire in Himley in Staffordshire. In view of the offences for which you were originally sentenced and your behaviour described above, the Home Secretary is no longer satisfied that it is right for you to remain on licence.”

[6]In revoking the claimant’s licence and recalling him to prison without prior recommendation by the Board, the Secretary of State was exercising a power conferred upon him by section 39(2) of the Criminal Justice Act 1991. Where he exercises such power, however, the Secretary of State is obliged by section 39(4)(b) to refer the case to the Board. By section 39(5A), the function of the Board upon any such reference of the case of a prisoner serving an extended sentence is set out in section 44A of the Act. Subsection (4) of that section provides that, on such a reference, “… the Board shall direct the prisoner’s release if satisfied that it is no longer necessary for the protection of the public that he should be confined (but not otherwise).”

[7]In R (on the application of West) v The Parole Board

[2002] EWCA Civ.1641

the Court of Appeal held by a majority that, when it considers a reference under section 39(5) of the Act of 1991, the Board does not determine a criminal charge within the meaning of

Article 6 of the European Convention on Human Rights

. In paragraph 23 Simon Brown L.J. referred to “the critical fact that, when a parole licence is revoked and its revocation is subsequently confirmed, this is solely with a view to the prevention of risk and the protection of the public and not at all by way of punishment.” He went on to quote from a judgment of Lord Bingham C.J. in R v Sharkey

[2000] 1 Cr.App.R.409

at 412:

“It is not necessary that the person shall have committed, or be suspected of having committed, any further offence, for these powers to be invoked. It is no part of the Parole Board’s remit to decide what punishment any defendant should undergo. Its concern is with the protection of the public against risk.”

[8]Although the above remarks do not address the specific function of the Board in the case of a recalled prisoner serving an extended sentence, as set out in section 44A of the Act of 1991, I see no reason to doubt their applicability to it.

[9]Notwithstanding its conclusion, the Court of Appeal in West went out of its way to stress the Board’s duty to adopt a fair procedure. In paragraph 45 Sedley L.J. said:

“Our judge-made public law recognises that the impact of recall is fully as grave as Hale L.J. says it is. It accordingly calls for a high standard of fair procedure. What it does not do is react schematically to the need by insisting on the translation of the criminal trial process into the different context of a Parole Board hearing. Indeed, even if [counsel for the claimant] had been right in his submission that recall amounts to the determination of a criminal charge, it would not in my judgment follow that a quasi-criminal trial had to take place.”

[10]Six days after granting permission, at an oral hearing, to the present claimant to proceed with this claim, Elias J. gave judgment in R (on the application of Sim) v The Parole Board and SSHD

[2003] EWHC 152

. It fell to him there to conduct a far more wide-ranging analysis of the position of the Board on a reference following recall from licence of a prisoner serving an extended sentence than is required in the present case. Running through the decision, part of which (so I am told) is subject to appeal, is the judge’s recognition of the uncomfortable tension between the apparent slightness of the material which can justify the Board in declining to direct the prisoner’s release and the potentially very severe consequences thereof for the prisoner, namely in the present case incarceration for a further five years. To an extent, but perhaps only to a limited extent, Parliament has sought to address this tension by providing, in section 44A(3) of the Act of 1991, that such a prisoner can require the Secretary of State to refer his case to the Board after every full year which elapses following its previous disposal of any such reference.

[11]In the case of Sim, Elias J held that section 44A(4), set out in paragraph 6 above, should be subject to a particular construction in order to comply with Article 5.1 of the Convention of 1950. It is fortunately agreed that there is no need for me to wrestle with that point. The judge proceeded, however, to consider a submission on behalf of the claimant that it had been wrong for the Board to take hearsay evidence into account. In that regard the judge quoted extensively from a judgment of Latham L.J. in R (on the application of McKeown) v Wirrall Borough Magistrates Court (CO3972.2000), in which the Divisional Court was required to consider the type of material which a magistrate was entitled to consider upon an application for bail. In paragraph 42 Latham L.J. had said:

“What undoubtedly is necessary is that the justice, when forming his opinion, takes proper account of the quality of the material upon which he is asked to adjudicate. This material is likely to range from mere assertions at the one end of the spectrum which is unlikely [or] may not have any probative effect, to documentary proof at the other end of the spectrum. The procedural task of the justices is to ensure that the defendant has a full and fair opportunity to comment on, and answer, that material. If that material includes evidence from a witness who give oral testimony, clearly the defendant must be given the opportunity to cross-examine. Likewise, if he wishes to give oral evidence, he should be entitled to. The ultimate obligation of the justice is to evaluate that material in the light of the serious potential consequences to the defendant, having regard to the matters to which I have referred, and the particular nature of the material, that is to say taking into account, if hearsay is relied upon by either side, the fact that it is hearsay and has not been the subject of cross-examination, and form an honest and rational opinion.”

[12]In paragraph 59 Elias J. then proceeded to say:

“In my judgment this summarises the approach which should generally suffice in relation to the Parole Board’s functions. I would only add the qualification, however, that there may be cases where fairness is not met simply by the Parole Board giving such weight to contested evidence as it thinks fit, whilst bearing in mind that it has not been tested. Fairness may require a defendant to be able to challenge crucial evidence relied upon as a justification for recall by seeking to show by cross-examination that it is false and ought not to be given any weight at all. After all, lengthy periods of imprisonment are often potentially at stake.”

He went on to decide that, in the circumstances of that case, it had not been unlawful for the hearsay evidence to be admitted.

[13]On behalf of the claimant Mr Challinor submits that, by contrast with the Sim case, the present case was one where the hearsay evidence was unlawfully admitted.

[14]The first day of the hearing of the board’s enquiry into the claimant’s case took place on 20 June 2002 in Stafford Prison. The Sentence Enforcement Unit of the Prison Service made clear that it proposed to call the two probation officers who successively had supervised the claimant prior to his recall to prison and two women police constables. It had filed and served reports by the probation officers, notes made by the police constables and copies of letters which had been sent by the claimant to the mother of the first boy while the claimant had been in prison prior to release on licence. It was clear that the claimant had known the first boy’s family prior to his imprisonment in 2000 and his letters to the mother were written in friendly, indeed affectionate, terms and referred extensively to her two sons. The written material alerted the claimant’s solicitors to the fact that the Enforcement Unit was proposing to present a large amount of hearsay evidence to the Board, in particular that: a) late in November 2001 and early in December 2001 the first boy’s maternal grandmother had told police officers that her daughter had been letting the claimant have contact with her grandsons and that he had been taking them on outings; b) that early in December 2001 the first boy’s maternal uncle had told the probation officer that the claimant had been visiting the home of the first boy and his brother and taking the first boy out; c) that on 4 January 2002 the first boy’s mother had informed a case conference, albeit inconsistently with what she had previously said, that the claimant had been taking her sons on outings and that in particular he had taken the first boy to the bonfire; and d) that on 11 January 2002 the first boy himself had informed the police constables and a social worker that the claimant had taken him and three other children, namely two boys and a girl, to the bonfire.

[15]Faced with this material (or some of it), the solicitors for the claimant had, six days prior to the hearing, written to the Board. They said that their client denied the allegations and that on his behalf they wished to cross-examine the mother, uncle and grandmother of the first boy; the first boy himself; and the other three children allegedly taken to the bonfire. At the first hearing itself, however, Mr Challinor, who was already representing the claimant, put the matter slightly differently: he successfully submitted that there should be an adjournment until 20 August in order that the two women police constables should interview and take statements from the three other children allegedly taken to the bonfire. No direction was made for the attendance of any further witness.

[16]Shortly prior to the second day of the hearing, witness statements made pursuant to section 9 of the Criminal Justice Act 1967 by the two constables and by the third boy were served upon the claimant. The constables stated that they had interviewed the second boy on 22 July and that, although lack of co-operation on the part of his parents had prevented them from obtaining a written statement from him, he had said that the claimant had taken him to the bonfire together with the first boy, the third boy and the girl. In his written statement dated 23 July, taken by one of the constables, the third boy had also said that the claimant had taken him to the bonfire together with the first boy, the second boy and the girl. The constable said that all efforts to trace the girl had proved unsuccessful.

[17]Thus, by 20 August 2002, namely the second day of the hearing, the evidence that the claimant had taken children to the bonfire amounted to reports that the first boy’s mother, the first boy and the second boy had said so and to a witness statement to similar effect signed by the third boy.

[18]Happily a good note of the proceedings was taken by the clerk to the Board. It is clear that at the outset of the second day Mr Challinor expressed concern about the nature of the evidence against the claimant. He conceded that the proceedings did not amount to a criminal trial and that criminal rules of evidence did not apply. Yet, as a public body, the Board, so he submitted, should act fairly. The evidence against his client was, so he said, hearsay upon which the Board should not rely in circumstances where the issue at stake was so grave. It is clear that Mr Challinor made a formal objection to the admissibility of that evidence. He conceded that it might be difficult to get the boys to attend the hearing but suggested that at least their parents, presumably able to speak about the whereabouts of the boys on the evening of 3 November, should attend. The Board adjourned for ten minutes to consider the objection. When the hearing resumed, the chairman said that the duty of the Board was to be satisfied about the risk on the available evidence; that some witnesses were present; that the Board was reluctant again to adjourn; that the Board proposed to hear those witnesses; and that it would consider any further submissions thereafter, whereupon it would either decide the matter or take any other course which was fair.

[19]Thus on the second day the claimant’s two successive supervisors and a social worker allocated to the first boy’s family gave evidence, as did three witnesses called on behalf of the claimant, including in particular his aunt with whom he had been living during the period of his release.

[20]On the third day of the hearing, which took place on 5September 2002, the Board received evidence from the two women police constables, from the claimant and from two further witnesses on his behalf. Again there is a good note of what was said at that hearing, in particular of the final submissions of Mr Challinor. It seems clear that he did not expressly remind the Board that on 20 August it had resolved to hear the available oral evidence and then to consider whether to take any course other than to proceed at once to a decision: in other words he did not expressly ask for a further adjournment so that the three boys or their parents, or, in the case of the first boy, his uncle and grandmother, might be made subject to an attempt to bring them to an adjourned hearing in order to give oral evidence. Prominent among his submissions, however, was the suggestion that the evidence that the claimant had taken the children to the bonfire was entirely hearsay and that that feature of it seriously undermined its cogency.

[21]By letter dated 23 September 2002, the Board announced and explained its decision to decline to direct the claimant’s release. It said:

“1. The Crime and Disorder Act 1998 requires the Parole Board to direct your release only if it is satisfied that it is no longer necessary for the protection of the public that you should be confined. The panel which considered your case on 5 September was not so satisfied and has therefore not directed your release at this stage. This decision is binding upon the Secretary of State. 2. … 3. The panel heard a great deal of evidence over 2 days. In coming to their conclusion they took into account the following factors and findings: 4. The panel was satisfied that you were conversant with and understood the conditions of your licence. In particular you had been expressly warned by your supervising officer to have no contact with [the first boy’s mother] or her family, especially her sons. 5. The panel was satisfied that your recall to prison was justified. You admitted in your evidence to them that in retrospect you accepted that you had breached your licence by persistent contact with [the first boy’s mother], a mother of a vulnerable family, and by going to the Himley bonfire event knowing that it would be attended by large numbers of children and families. Your lapses were described by Counsel as errors of judgment with no intention of unacceptable or unlawful behaviour. In the panel’s view, however, such behaviour constitutes breaches of condition vi and, arguably, ix of your licence. 6. The panel also received evidence that when you attended the Himley bonfire you took a number of children with you including [the three boys] and a girl … The panel acknowledge that in this respect they did not have primary evidence. However, they received statements made under the Criminal Justice Act 1967 and evidence from two experienced police officers, both members of a child protection unit and a social worker, all of whom had considerable background knowledge of the children involved. The police officers were involved in taking the statement from the boys. They were able to assist the panel with their views on the credibility of the children and their susceptibility to pressure or bullying from [the first boy’s uncle]. You denied taking the children to the Himley bonfire. You maintained that the evidence of the children was a fabrication made under pressure from [the uncle] whose intention, plus that of [the grandmother], was to secure your return to prison. Your position was supported by the witnesses called on your behalf, although much of their evidence was in reality based on information provided by you. The panel accepted the contention made by Counsel on your behalf that the statements taken by the police from the children could have been more detailed in order to provide a better basis for cross checking for consistency. However, the statements are clear and unequivocal and, supported as they were by the police officers’ evidence, were considered by the panel to be credible. The panel did not accept the view that this evidence emerged because of pressure and/or bullying by [the uncle]. They found that the evidence of the police officers and the social worker in particular, given their personal knowledge of the persons concerned, was such as to rebut that submission. 7. On balance the panel considered that it was reasonable to place reliance upon the children’s statements. They did not believe that there was any substantive evidence that [the third boy’s] statement was influenced by [the first boy’s uncle]. The suggestion that he was in some way related to [the uncle] was unsupported. Your counsel made various submissions on the reliability of the children’s statements and their evidential value, but he did not formally oppose their being tendered as evidence. On the evidence as a whole the panel have rejected your claim not to have taken the children to the Himley bonfire, which you admitted attending. They did not find as credible your explanation of why you apparently left there early and this, in their judgment, raised some doubt as to the accuracy of your recall of the events. 8. The panel acknowledged that you diligently kept your appointments with your supervising officer. You have the support of various people, not least your [aunt]. Nevertheless the panel were concerned to learn from [your first supervisor] that he considered that you were less than frank in your dealings with him. 9. You have been before the courts on four occasions (including the index offence) for sexual offences against children. The behaviour which gave rise to your recall to prison was, to some degree, similar to the pattern of your previous offending in that it involved a vulnerable family. 10. Your pre-sentence report for the Wolverhampton Crown Court in February 2000 described you as at very high risk of offending. Your supervising officers in their evidence to the panel expressed the same view. Your performance on the Sex Offender Treatment Programme was relatively modest. There were clear deficits not least in the areas of the identification of risk factors and coping strategies. It was said that you would benefit from further work on relapse prevention. In your evidence to the panel you appeared to accept this. Your report following the Sex Offender Treatment Programme indicated that you made one entry in your risk factor diary. It related to high risk emotions including anger and hate. Your evidence to the panel at one point suggested that these emotions remain to be addressed. 11. The panel concurred that the risk you present remains too high to permit your release. You expressed a wish to undertake the adapted Sex Offender Treatment Programme. The panel hope that early consideration will be given to this.”

[22]As it was later to concede, the Board was wrong to have asserted in paragraph 7 of the decision letter that Mr Challinor had not formally opposed the tendering of the statements of the three boys as evidence. On 20 August he had clearly articulated such opposition. Mr Challinor argues that such error of recollection within weeks of that date inspires no confidence that the Board remembered that its response had been to indicate that, after hearing such evidence as was available, it would consider whether to proceed to decision or to seek further oral evidence. But, no doubt for reasons which seemed good to him at the time, he did not expressly urge that course upon the Board in his final submissions on 5 September.

[23]How central to the Board’s decision was its acceptance of the assertion that the claimant had taken children to the bonfire on 3 November? It is clear from its decision letter that, in declining to be satisfied that his confinement was no longer necessary for the protection of the public, the Board had regard to four other matters: a) A report on the result of the claimant’s attendance while in prison prior to release in the ‘Sex Offender Treatment Programme’ was by no means entirely negative but indicated that, by reason of his learning difficulties, an adapted programme would have been more suited to him. b) Following his release on licence, the claimant had on any view resumed a small degree of contact with the first boy’s mother. She was a single mother struggling, with the assistance of a social worker, to bring up her children; and the evidence was that she was naïve and vulnerable. It was clearly valid for the claimant’s resumed contact with her to be compared to his friendship with the mother of the victim of the offences of which he had been convicted in 2000. Furthermore the claimant’s first supervisor gave evidence to the Board that in the summer 2001 he had told him not to have contact either with the mother or with her children. In his evidence the claimant had sought to explain his limited contact with the mother on the basis that most of it arose out of the developing, and, as he suggested, malicious, campaign on the part of the uncle and the grandmother to secure his recall to prison. c) The first supervisor also gave evidence that the claimant had not informed him in advance about intended occurrences, in particular his meetings with the mother, and that, to that extent, there had been a lack of proper frankness on his part. d) Even on his own account, the claimant had gone on 3 November to a bonfire, namely an event likely to be attended by a large number of children. It was fair for the Board to conclude that he thereby deliberately put himself into a position of risk. The claimant’s evidence was to the effect that he had gone to the bonfire because as a child he had never been allowed to go to such an event and so wanted belatedly to act out a stunted part of his own childhood.

[24]But would such matters alone have been capable of sustaining a refusal by the Board to direct the claimant’s release under Section 44A(4)? In a witness statement signed in these proceedings the Chairman who presided over the hearing indicates that, in the light of the above matters, the Board did not attach decisive significance to the claimant’s attendance at the bonfire with the children; and that such was but one of the factors considered in relation to the risk. On the other hand the claimant’s second supervisor, who instigated his recall, said that she would not have done so in the absence of the allegation in January 2002 that he had taken children to the bonfire. Indeed in these proceedings a senior officer of the Enforcement Unit has averred that the claimant’s recall was based upon a single alleged incident. I agree with Mr Challinor that it is doubtful whether, in the absence of the finding that the claimant had taken the children to the bonfire, the Board could rationally have reached the same decision. He is thus in my view correct to submit that the hearsay evidence of the three boys went to a central feature of the case against the claimant. Although, as he concedes, hearsay is regularly presented to the Board at such hearings, was it fair for it to be presented on a central and hotly disputed matter?

[25]It is clear that there would have been grave difficulties about securing the attendance of the three boys at the hearing and that accordingly, had their hearsay statements not been admitted, there would probably have been in effect no evidence at all that the claimant had taken children to the bonfire. The Board may direct the attendance of a witness; but it has no power to attach a sanction for non-compliance with such a direction. The only means of compelling a witness to attend before the Board is the use of the power given to the High Court or county court under Rule 34.4 Civil Procedure Rules 1998 to issue a witness summons in aid of a tribunal. On the material before the Board, it was most unlikely that the boys would attend the hearing otherwise than by the use of such a compulsive power. On receipt of the demand by the claimant’s solicitors prior to the first day of the hearing for a wide-ranging facility to cross-examine, the Enforcement Unit had caused the police to enquire of the first boy’s family whether its members would be willing to attend the hearing; and the Unit had reported to the Board that all were quite emphatic in stating that they did not wish to do so. The second boy, whose failure to make a written statement was allegedly the result of non-cooperation of his parents, did not respond to the constable’s request to inform her by telephone whether he was prepared to attend the hearing to give evidence; and the same constable gave evidence that the third boy’s mother did not wish him to attend the hearing. As Miss Stern points out, it was as much open to the claimant as it was to the Unit or to the Board itself to apply to a court for the issue of a summons under Rule 34.4; and, had Mr Challinor, whether on 20 August or on 5 September, applied for a further adjournment in order to approach a court for issue of a summons and to effect its service, the Board would have had to give his application due consideration. Of course the undesirability of causing children to give evidence in any proceedings, but in particular at a hearing in a prison, needs no emphasis. I felt constrained to point out to Mr Challinor during the argument that, as a judge of the Family Division for ten years, my frequent task had been to assess the risk of physical or sexual abuse posed to children and that not once had I, whether by video-link or otherwise, received direct evidence from any child. Mr Challinor’s response was that no decision of mine in that capacity had caused anyone to be imprisoned for five years. He was correct to stress that dimension of the type of enquiry conducted by the Board. Nor should it be forgotten, however, that the enquiry was necessary only because the claimant had, on proper evidence in the strict sense (namely on his admission), been convicted of a criminal offence and because the express basis of part of the sentence for it had been the need to protect the public from further such offences. The exercise upon which the Board was engaged was the proper implementation of the court’s sentence in the light of all that had by then occurred relevant to the risk of further such offences.

[26]It is inapt for me upon this application to be drawn by Mr Challinor into running a fine-tooth comb across the evidence that was before the Board. Nevertheless it is central to his case that before the Board were such warning signs that the statements of the boys might have been fabricated as should have led it to decline to admit them unless given orally and subject to cross-examination. In particular he stresses that it was the claimant’s case that the accusations made against him, first by the adults in the first boy’s family and later by the three boys themselves, were the product of spite on the part of the first boy’s uncle which developed into a conspiracy. The first allegations against the claimant, albeit not in relation to the bonfire, were articulated to the authorities by the first boy’s grandmother and uncle between about 29 November and 5 December 2001. The claimant’s case was that on 27 November 2001 he had had an argument with the uncle in the course of which he had refused to give him a lift and had spoken of him disparagingly; and that the false accusations were revenge for it. It is certainly the case that as early as 3 December the claimant was telling a social worker about his rift with the uncle; but the alternative analysis would presumably be that by then he was urgently laying the ground for some sort of defence.

[27]In support of his conspiracy argument, the claimant called a friend who gave evidence to the Board that late in 2001 he, the friend, had heard the grandmother shouting at the claimant that, in effect, she had a way of getting him back into prison and that in June 2002 the uncle had told him that the claimant had been sorted out in that he was now back in prison. Mr Challinor’s case before the Board was that the accusation of taking the children to the bonfire had first been made suspiciously late, namely on 4 January 2002, and that its authoress, namely the first boy’s mother, was particularly unreliable. His case was that on four occasions prior to 4 January the mother had denied that the claimant was having any contact with her children. Although, on analysis, two of them seem only to be occasions when, according to the claimant, the mother assured him that she would confirm that he had had no contact with her children, it is clear that on two other occasions, namely on 30 November and 14 December 2001, she had spoken to the police and to her social worker along those lines. As for the hearsay evidence from the three boys themselves, Mr Challinor’s submission to the Board was that from two of the boys the evidence had come almost nine months after the alleged incident; and that so few details of the event were given by the three boys, beyond the bare assertion that it had occurred, that it had been impossible for him to undertake the rudimentary forensic exercise of comparing details of the accounts.

[28]I am in no doubt that the claimant’s right to a fair hearing demanded that in these circumstances the Board should look not only very carefully but also very critically at the material which suggested that he had taken the children to the bonfire. But I find it impossible to say that, having made the reasonable decision on 20 August to proceed to hear the available oral evidence and then to consider whether it was possible to reach a fair decision without calling for further oral evidence, it was improper for the Board on 5 September to rely at all on what the boys had said. In paragraphs 6 and 7 of the decision letter the Board sought quite carefully to wrestle with the proper approach to the evidence of the boys; and, speaking for myself, I am not surprised that it declared it to be only ‘on balance’ that it considered it reasonable to rely upon what they had said. In Re W (Minors) (Wardship: Evidence)

[1990] 1 FLR 203

at 214D and 218G Butler Sloss L.J., as she then was, explained that in wardship proceedings the hearsay evidence of children was admissible but that the reliability of the person relating their statements to the court was of vital importance in an assessment of their credibility. The oral statement of the first boy was conveyed to the court orally by the two constables and by his family social worker; and the oral and written statements of the second and third boys were conveyed by the same constables. The social worker and at least one of the constables had professional expertise in assessing the truth of what children say. The social worker told the Board that, when he gave his account on 11 January, the first boy did not seem threatened but, on the contrary, appeared to be relaxed and to be giving an account in all innocence. She added that she knew the family and that, unlike his younger brother, the first boy was not intimidated by their uncle. The two constables gave similar evidence about their appraisal of the first boy’s account given in January; and at least one, if not both, of them said that the statements collected in July 2002 from the second and third boys, oral and written respectively, also appeared to have been given very genuinely. In this court we can only read the note of such evidence. The Board, however, heard it; and it is clear from paragraph 6 of its decision that it emboldened it to accept the boys’ account.

[29]In paragraph 7 of the decision letter, the Board stated that it did not find part of the claimant’s account of his attendance at the bonfire to be credible. In fact there were three features of the evidence adduced by him and on his behalf which might reasonably have caused the Board disquiet. There was agreed evidence before the Board that the gates for the event opened at 4.30pm, that the bonfire was lit at 7.45pm and that the fireworks were lit between 8.30pm and 9pm. The claimant’s evidence was that he arrived – alone – at 4.45pm and that he left at 8.10pm, i.e. shortly after the bonfire had been lit and shortly before the fireworks were to be lit. In that he had waited for so long, it does seem curious that he chose to leave shortly before the firework display. Arguably more significant, however, were two other features. First, his second supervisor gave evidence that on two occasions in January 2002 he told her that he had not gone to the bonfire at all. The second feature is that the claimant’s aunt, with whom he was living and who seems to have striven hard to help him to keep away from trouble during his period of release on licence, telephoned a social worker on 3 November itself in order to invite her to check that the claimant was not being inveigled by the family of the first boy into taking the family to the bonfire; she also said in evidence that, on his arrival back at her home, she said to him “you haven’t taken [the first boy and his younger brother and mother], have you?” Notwithstanding the aunt’s protest to the Board that what she had said on 3 November was intended to be protective and pre-emptive and betrayed no belief on her part that the claimant had taken the children, her rather startling evidence, perhaps of premonition, was surely capable of featuring in the conclusion that the hearsay statements of the boys should be afforded weight and indeed ultimately believed.

[30]Mr Challinor is such a good advocate that, at times during the hearing, he almost made me feel that I was president of the principal arena in which all these points fell to be weighed; and I confess that, to the extent that I was almost mesmerised into purporting to fulfil that role, I entertained at times some doubts about reliance on the statements of the boys which the Board itself seems perhaps to have entertained prior to its conclusion “on balance” to the contrary. But this court sits at a considerable remove from the principal arena; and, although Mr Challinor rightly points out that my search for fairness means for actual fairness and more than just for arguable fairness or for some rational or defensible conclusion that the decision to admit the evidence was fair, I am in the end unable to subscribe to his complaint. The hearing was fair and the application is dismissed. - - - - - - - - - - - - - MR JUSTICE WILSON: I disseminated my judgment in draft to counsel yesterday and I was happy to note that there was no return from either of them indicating glaring error, so the draft judgment has now been turned into "a judgment approved by the court for handing down subject to editorial corrections", and unless I announce any editorial correction this morning, and I do not intend to do so unless a problem is drawn to my attention, this is my judgment on Mr Pearson's application and it follows that his claim is dismissed. MISS STERN: My Lord, I am very grateful. I myself noted no editorial corrections whatsoever. MR JUSTICE WILSON: Good. MISS STERN: My Lord, that leaves only a very simple application for costs on the usual basis against a legally assisted party, and I understand there is no objection to that. That is the only order that is sought by the defendant. MR JUSTICE WILSON: Miss Jordan, good morning. How nice of you to come in Mr Challinor's place. MISS JORDAN: Thank you, my Lord. MR JUSTICE WILSON: This application for costs against your client as a publicly funded party, what I expect Miss Stern will be suggesting is quantification to be adjourned generally, is that it? MISS STERN: My Lord, yes. MR JUSTICE WILSON: You have your protection. Is it now the Access to Justice Act? MISS JORDAN: Yes, my Lord. MR JUSTICE WILSON: You have your protection under that and it can only be an order for costs in principle, then it would have to be quantified in the light of your client's means, and I suspect there not being any aspiration by the defendant to quantify them unless your client was to come into a lot of money, but anyway, I am asked to make an order for costs against your client with quantification adjourned generally with liberty to the defendant to restore. Can you oppose that? MISS JORDAN: No, my Lord. MR JUSTICE WILSON: Is that the order that you are seeking, Miss Stern? MISS STERN: My Lord, it is. MR JUSTICE WILSON: That order is granted. MISS STERN: I am grateful, my Lord. MISS JORDAN: The only other matter is the claimant would ask for legal aid assessment. MR JUSTICE WILSON: Of course, and also a detailed public funding assessment of the claimant's costs. MISS JORDAN: I am grateful. MR JUSTICE WILSON: Any other application, Miss Jordan? MISS JORDAN: No, my Lord, thank you. MR JUSTICE WILSON: Thank you very much for coming.