Tocher, Application for Reconsideration by [2023] PBRA 17 (31 January 2023) [2023] PBRA 17
[22]“Mr Rule originally submitted that R(D) is authority for the principle that it will only be in an exceptional case that the panel should consider allegations of wider offending. However, during discussion with the court he finessed his argument to the extent that he conceded that whilst it is necessary for the panel to consider the materials to determine whether they do aid a more complete understanding of risk, it is for the panel to decide whether the investigation of any aspect of an unproven allegation of wider offending will be necessary in this regard. I consider this a realistic concession which addresses Ms S's pertinent observation - on what basis is a case to be deemed exceptional in the absence of the necessary information. There is no suggestion that paragraph 8 of the Guidance which gives examples of potentially 'relevant' allegations, including those of harmful or risky behaviour, or which undermine the credibility of the prisoner's evidence or their reliability to comply with licence conditions, or which impact upon the weight that can be placed upon a professional witness who has not taken account of the allegations, misstates the authorities. ” 40. The Court said this about the Panel’s role :[35]“It may be that the difference sounds more in form rather than substance. The question of what constitutes a fair procedure to make findings of fact, or evaluations of the information, will be fact specific as explained in West and is unlikely to entail the formality of public law family proceedings. The test posed in Considine at paragraph [37] provides that a fair analysis of all the information should inform the necessary judgment in relation to risk. Nevertheless, what is clear to me is that the panel must conscientiously evaluate the information before it to make findings of fact upon which to make the assessment of the prisoner's risk; in these circumstances neither public protection nor public law fairness will be compromised. Established or undisputed constituent or consequential facts to an overarching allegation may provide compelling and convincing indications of risk in themselves, whereas simply to assess the seriousness of the nature of an allegation, provided there is some evidential basis for it is to embark down the route of 'no smoke without fire”.[45]“To illustrate the point, suppose that a dossier prepared for the parole review of a prisoner who had been convicted of sexual assaults against children, contains information that prior to the onset of his first conviction he had been arrested on suspicion of indecent assault of a child and otherwise questioned as a person of interest regarding another sexual assault in the periods between his convictions. Although he had not been tried for any of the offences these are potentially relevant allegations to the assessment of risk since they suggest that the prisoner has been involved in more extensive harmful behaviour and undermines his explanation of the trigger event which led to the offending for which he had been convicted. The information reveals that the reason for his first arrest was because the prisoner was often seen in the children's playground in which the child who had been assaulted had played; but that he was questioned in relation to the later allegation only because he was one of a number of men who had previous convictions for similar offences.[46]I would expect the panel to identify the last allegation as a 'mere' allegation without any evidential basis and to immediately disregard it. However, the information concerning the first allegation would justify the panel in questioning the prisoner about his alleged behaviour. If the fact that he was often in the proximity of the children's playground is undisputed or established as a fact on the balance of probabilities then, unless there is a plausible explanation for his presence, it suggests that he had engaged in risky behaviour some significant time before his first conviction. In such a case, the panel would have made a factual finding (of frequenting the children's playground) falling short of the original allegation, but upon which it could base its assessment of future risk.[47]However, if the prisoner denies any attendance at the playground and the information is insufficient to enable the panel to be satisfied that the prisoner did frequent the playground, or if he was seen proximate to it that he was not taking a well-recognised route elsewhere, then if the current Guidance were correct, since there is some evidential basis for the allegation the panel may proceed to make an 'assessment' of the 'level of concern' that the prisoner had been alleged to have committed a sexual assault, attaching great weight to the serious nature of the allegation in accordance with paragraph 20(c) and, on the basis of Morris, concluding that if there was 'a significant chance short of a probability' that he had committed such an assault, proceed to take that into account when assessing risk. I consider this unjustified on a correct reading of the authorities. I regard Baker J's judgment at paragraph [12] in Delaney, unqualified by commentary in the case of Morris, to be correct. In short, if the panel cannot be satisfied on the balance of probabilities that the prisoner was frequenting the playground at all, the allegation should be disregarded. ”41. When faced with unproven allegations the Panel must consider what findings of fact (if any) can be made. The decision letter should then set out the factual conclusions arrived at and how this impacts on the decision-making process.42. In this case the Panel conducted the appropriate fact-finding exercise and concluded that none of the allegations could be proved on the balance of probabilities. They then went on to consider the factual matrix as admitted by the Applicant and concluded that his account of his use of drugs, and his explanation of his presence at the scene of an incident, was a concern.43. It seems to me that that was in no way impermissible (as, in fairness, the Applicant appears to accept at para 43). The Panel did not find that the Applicant had acted in an unlawful way, but gave clear reasons why, notwithstanding that, his behaviour at the time gave rise to concerns about his openness and honesty and, through that, to his manageability in the community.44. In those circumstances, I do not consider that there is any error disclosed in the decision letter. Decision45. For the reasons I have given, I do not consider that the decision was irrational, nor was it procedurally unfair.46. Accordingly, the application for reconsideration is refused. Daniel Bunting 31 January 2023