Neutral Citation Number: [2003] EWHC 1458 Admin
IN THE HIGH COURT OF JUSTICE	CO/1809/2003
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
St Dustin’s House
Fetter Lane
London EC4

	Wednesday 11th June 2003
B e f o r e

MR JUSTICE ELIAS

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T H E   Q U E E N

ON THE APPLICATION OF

WILLIAM BROOKS	
Claimant

v.

(1) THE PAROLE BOARD
(2) THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendants

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(Computer Aided Transcription of the Stenograph Notes of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG   Tel: 020 7404 1400
Official Shorthand Writers to the Court)
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MISS PHILLIPPA KAUFMANN (instructed by Messrs Bullivant & Partners) appeared on behalf of the Claimant.
MISS KRISTINA STERN (instructed by The Treasury Solicitor) appeared on behalf of the Defendants.
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J U D G M E N T
(As approved by the court)

	LORD JUSTICE ELIAS:
1.	This is an application for review. The proceedings raise a single issue: whether the decision of the Parole Board not to direct the claimant’s release on life licence, taken on 10th January 2003 following his recall to prison, was unlawful in the light of the procedure adopted by the Board. More particularly, the issue is whether the Board acted lawfully in considering hearsay allegations of rape against the claimant. The claimant submits that the proceedings were unlawful, both because the procedure was unfair at common law and because it violated the claimant’s right to a fair hearing under Article 5(4) of the European Convention on Human Rights.
2.	It is however common ground that the procedural safeguards required by the common law and Article 5 are the same, at least in the circumstances of this case.
3.	There is an independent claim against the Secretary of State directed at his decision on 2nd April 2003 to refer the matter back to the Board for a fresh determination. However, Miss Kaufmann for the claimant accepts that this stands or falls for the case against the Board. Accordingly, I will simply focus on that latter decision.
	The background The background The background 
4.	The prisoner is a discretionary life sentence prisoner. He was sentenced to life imprisonment on 19th December 1977 following conviction for an offence of rape. At that trial he was also given determinate sentences for a number of other sexual offences, including two offences of abducting women for unlawful sexual intercourse. He had previous convictions for sexual offences, including convictions for rape and attempted rape in 1974. The claimant was released for the first time on licence on 9th December 1993. He was recalled on 11th September 1997 for committing an alleged offence of robbery, although in fact he was acquitted of that charge. On 19th July 2000 he was again released on life licence. 
5.	On 23rd August 2002 he was recalled to prison by the second defendant. This was precipitated by an allegation of rape made on that day. The circumstances in which that recall occurred were as follows. 
6.	Following his second release on licence the claimant’s marriage broke down and he formed a new relationship with a woman named Shirley Langhorne. He moved in to live with her. On 22nd August 2002 Ms Pettit, who was the claimant’s supervising officer, visited the claimant and Ms Langhorne at their home. Ms Pettit noticed scratch marks on Ms Langhorne’s face. The claimant admitted that he had inflicted these. Ms Pettit directed that the claimant should stay with his ex-wife. She prepared a warning letter to the claimant, requiring him not to visit or approach Ms Langhorne without the consent of his supervising officer. She also gave him a further appointment for 28th August.
7.	The following day, 23rd August, Ms Langhorne was interviewed by Ms Saddington, who was a duty probation officer at the probation service’s Newark office. During the course of that interview Ms Langhorne made a number of serious allegations about the claimant. She said that on 22nd March she and the claimant had attended the claimant’s birthday party at his family home in London. She had a row with the claimant’s sister and the claimant had become very angry with her. He was angry and abusive with her when driving back home and put her in fear for her safety. She said that he had hit her across the face when she was in the phone box trying to seek help from her ex-husband. They returned home at about two o’clock and she went to bed in the spare room because she was by then frightened of him. He came into the room and when she refused to have sex with him he raped her. She said that he in fact raped her on five separate occasions between two o’clock and eight o’clock in the morning.
8.	She also alleged that on 21st August he had punched her while she was in the bath, causing bruising and a graze to her face and that on previous occasions he had held her violently against the wall by her neck. She said that she was afraid that if she returned home she would again be raped. This complaint of rape was repeated by Ms Langhorne to Ms Pettit on 29th August. 
9.	On the following day, 30th August, Ms Langhorne made a statement to the police pursuant to the Criminal Justice Act. In the course of that statement she gave the following details about the rape allegations:
“In March 2002 Bill and I had a row and Bill rape me. I don’t tell lies and Bill did do this to me. I told the probation service because I needed to get help with Bill and his problems, and Bill was taken back to prison. Although Bill did rape me I don’t want the police to do anything about it. I really, really loved Bill and I don’t want this to go any further. I don’t want to discuss what happened and there is no way I will go to court.  Bill did rape me but I cannot speak up against him.”
10.	Following the claimant’s recall, an oral hearing had been convened to determine whether it should be confirmed or whether his release should be directed by the Parole Board. 
11.	On 10th September 2002 the claimant’s solicitor, who was not aware of the existence of the statement of 30th August, sought a signed statement from Ms Langhorne setting out her allegations. The solicitor also indicated that she wanted Ms Langhorne to be called as a witness and that it was for the Secretary of State to ensure that Ms Langhorne attended.
12.	On 3rd October 2002 Ms Langhorne contacted the claimant’s solicitors, indicating that she wished to withdraw the charges of rape. However, she never did withdraw those charges.
13.	On 7th November the lifer unit of the prison service, acting on behalf of the Secretary of State, advised the claimant’s solicitor to contact the probation service in respect of the request that had been made to secure the attendance of Ms Langhorne, and similarly in respect of the request for a written statement from Ms Langhorne.
14.	The Parole Board listed the case for a hearing on 29th November and that date was brought forward by two days. On 20th November the chairman of the discretionary life panel directed the Secretary of State under rule 9 of the Parole Board Rules 1997 to take a signed statement from Ms Langhorne, and under rule 7 it was also required that Ms Langhorne should attend the hearing. However, he had no power to compel her attendance. Similarly he asked for a signed statement from Ms Pettit, the supervising probation officer, about what had been said at the meeting on 23rd August. This was subsequently provided.
15.	On 27th November the Parole Board ordered a deferral of the hearing at the behest of the lifer unit. The claimant was unhappy about this and noted that Article 5(4) of the Convention requires that the lawfulness of the detention should be decided speedily by a judicial body. It was hinted that the delays might be creating a breach of that obligation.
16.	The claimant’s oral hearing commenced on 19th December and a further hearing took place on 6th January 2003. No additional statement apart from that dated 30th August was obtained or served upon the claimant. Ms Langhorne did not attend. The lifer unit had written to her at her last known address and the probation service had managed to contact her but she had stated on the day before the hearing that she was not prepared to attend. The claimant did not seek an adjournment nor were any submissions made to the Parole Board that steps should be taken to subpoena Ms Langhorne. Indeed, the claimant at that stage was keen for the hearing to continue.
17.	At the hearing on 6th January submissions were made both as to the admissibility and reliability of the evidence considered by the Parole Board. In view of Ms Langhorne’s non-attendance, the Secretary of State successfully applied to the Board to call Marion Saddington, that is the probation officer, to whom Ms Langhorne had made the rape allegations on 23rd August. The chairman of the panel rejected the claimant’s submissions that her evidence should not be received. Ms Saddington was unable to produce any contemporaneous notes of the interview because, although she had taken some at the time, she has since destroyed them. She accepted that she could no recollect in detail what Ms Langhorne told her and confirmed that she had not previously met Ms Langhorne and was not familiar with the case. She had nevertheless found Ms Langhorne a credible witness. 
18.	Ms Pettit also gave evidence to the Board. She was not present when Ms Langhorne made the allegation of rape to Ms Saddington but those allegations had been repeated to her, although at that time Ms Langhorne had said that she would say different things to other parties.
19.	The Parole Board gave a reasoned decision refusing to direct the claimant’s release on licence on 10th January 2003; that is the decision challenged in this case. The Board noted at paragraph 3 that it had rejected the application to refuse to admit the evidence of Ms Saddington but commented that the mere fact that Ms Langhorne had made the complaint of rape would not of itself be evidence that the rape had occurred. The core of the panel’s reasoning is then set out in paragraphs 4 to 6 of its determination:
“4. The panel considered carefully the circumstances in which the allegation of rape was made and took into account:-
the fact that Ms Langhorne did not give evidence before us, and that her allegation could not be tested in cross-examination;
the fact that she did not make a complaint of rape for a period of about five months after the event;
the fact that she knew you had been convicted of rape in the past and therefore a further complaint of rape might be considered to carry credibility;
the fact that she might make a false allegation in order to secure your recall to prison as a means of bringing her relationship with you to an end; and 
the fact that she telephoned Mr Brooks’ solicitor prior to the Parole Board hearing, and was advised how to withdraw the allegation.
5. Having taken all these matters into account the panel nevertheless concluded that it was more probable than not that the complaint of rape by Ms Langhorne was true for the following reasons:
(a)the allegation was consistent with behaviour which was observed by your probation officer, Ms Sylvia Pettit, before she was aware of the rape complaint. On 1st August Ms Pettit reported that you spoke about Ms Langhorne in a dominating and controlling way and that you were unhappy that she was not responsive enough to you sexually;
(b)the occasion of the rape occurred on an occasion when you have admitted there was an argument between you and that you were very angry with her resulting in a decision to sleep in separate bedrooms that night; 
(c)the complaint of rape, made by Ms Langhorne in a long interview with a Ms Marion Saddington (who was not previously acquainted with your case), was made in circumstances when Ms Langhorne was visibly frightened, crying and agitated; 
the complaint was repeated a few days later, on 29th August 2002, to your probation officer Ms Pettit; 
Ms Langhorne made a witness statement to the police on 30th August 2002 asserting the truth of the rape incident but asserting also that she would not given evidence against you in court; and 
in subsequent telephone calls and in a letter written by Ms Langhorne the allegation of rape has never been withdrawn, although Ms Langhorne state she still loved you. 
6. In reaching this conclusion the panel considered carefully your own evidence that no sexual intercourse occurred at all on the night in question. The panel was of the opinion that your evidence on this matter was less likely to be true than the account given by Ms Langhorne. Ms Saddington, who heard Ms Langhorne’s complaint was impressed with her credibility as was Ms Pettit to whom the allegation was repeated on 29th August. The panel did not consider your evidence credible on a number of issues and on this central question the penal could not understand why, if no sexual intercourse occurred at all on the night in question, Ms Langhorne should have chosen this occasion in which to allege rape when there were other instances she could have chosen to make an untrue accusation of rape. In doubting the truthfulness of your evidence on this central point the panel took into account the manner in which you gave evidence in chief and answered questions in cross examination in forming an assessment as to your trustworthiness as a witness generally.”
20.	The panel made a number of further adverse findings against the claimant in respect of his conduct towards Ms Langhorne and in respect of his probation supervision. It concluded at paragraph 8 as follows:
“The panel has concluded that given your past criminal convictions your behaviour generally towards Ms Langhorne is a cause for concern and is a factor which the panel have taken into account in considering future risk.”
21.	Accordingly these allegations supported what is referred to in paragraph 7 as the “central and specific allegation of rape”.
22.	In the grounds of appeal the claimant submits that the Board erred in three ways. The first and principal ground was that it was alleged that it ought not to have permitted the allegation of rape to be admitted in evidence at all, given that there was no opportunity to cross-examine Ms Langhorne. The evidence of Ms Saddington and Ms Pettit could not make good the fundamental defect and their evidence of what they had been told by Ms Langhorne ought not to have been admitted either. 
23.	Second, in any event all possible steps should have been taken to try to secure the attendance of Ms Langhorne. The Board ought to have obtained a witness summons from the County Court or the High Court pursuant to CPR 34.4, or it should have directed one of the parties to do so. At the very least it ought positively to have considered whether or not such a step should be taken before relying upon the allegation.
24.	Finally, it is contended that the evidence before the Board did not justify the conclusions it reached; the Board could not safely make any adverse finding against the claimant on the basis of the information before it. It is contended that it was inconsistent with its duty of fairness for it to reach the conclusion that it did, although in my view the real challenge here is to the rationality of the decision and this particular argument is not advanced - indeed, I think it is obscured - by conceptualising it in terms of fairness. 
	The applicable legal principles 
25.	1. Before considering the relevant arguments it is necessary briefly to set out the legal principles applicable to the decisions of the Parole Board. There is a considerable degree of common ground about them, and I shall merely summarise them. 
26.	The test which the panel must apply when considering whether it should direct the release of a discretionary life sentence prisoner is whether “it is satisfied that it is no longer necessary for the protection of the public to detain him”: 
27.	see R v. Parole Board ex parte Watson [1996] 2 All ER 641 (CA). 
28.	2. In determining whether the risk is unacceptable, the Board must be satisfied that it is a real or substantial, as opposed to merely being fanciful or imperceptible, risk: see R v. Parole Board ex parte Bradley [1991] 1 WLR 134 followed in R (Sim) v. Parole Board and SSHD [2003] EWHC 152 (Admin) paragraph 48. 
29.	3. The Board must approach its task by balancing the hardship and injustice of continuing to imprison a man who is unlikely to cause serious injury to the public against the need to protect the public against someone who is unlikely to cause such injury. As Sir Thomas Bingham MR pointed out in the Watson case, this will often be “a difficult and very anxious judgment” for the Parole Board. Then he added that: 
“But in the final balance the Board is bound to give preponderant weight to the need to protect innocent members of the public against any significant risk of serious injury.” 
30.	That is what the statute requires. See to a similar effect the observations of Roch LJ in the same case (page 653 e to f). 
31.	4. The procedural safeguards which are required to conform with Article 5 or the common law are the same and will vary depending on the circumstances of the particular case. Ultimately, as Sedley LJ put it in R (West) v. Parole Board [2003] 1 WLR 705 at paragraph 44, the question is what is necessary for the just disposal of the issues. 
32.	5. In general, the Parole Board can rely upon hearsay evidence in reaching its conclusions. It must, however, have regard to the fact that the evidence is untested when determining what weight should be given to such hearsay evidence in the particular case: see R (McKeown) v. Wirral Borough Magistrates Court [2001] 1 WLR 805 followed in Sim, to which I have made reference. 
33.	6. Exceptionally, however, the procedure will be unfair if the opportunity is not given to the prisoner to challenge crucial evidence which is relied upon as a justification for the recall: see the Sim case, paragraph 59. 
34.	7. It is ultimately for the court to determine whether or not the procedures adopted are fair; see R v. Panel on Takeovers and Mergers ex parte Guiness plc [1990] 1 QB 146. However, a court will give great weight to the tribunal's own view as to what is fair: see the observations of Lloyd LJ at page 184. 
35.	In essence, the claimant's case here is that he falls into one of the exceptional categories where the procedure was unfair because of his inability to be able to cross-examine Ms Langhorne. He submits that fairness requires that the untested evidence on such a central issue ought not to have been admitted at all in the circumstances of this case.
36.	I now turn to deal with each of the grounds in turn. 
	It was unfair to admit evidence of the rape in the absence of cross-examination 
37.	As I have said, both parties accepted that exceptionally the fact that the claimant had not had the opportunity to cross-examine a witness could render the determination unfair. There was however a material difference in the way in which counsel analysed the effect of this principle. Miss Stern for the Parole Board submitted that it would only be in the most exceptional case that evidence should be excluded before the inquiry began. She submitted that the Board should hear all the relevant evidence; if after hearing the evidence the Board came to the view that the untested evidence could not be relied upon, then at that stage it should ignore it. In effect it would simply give it no weight. The Board could conclude that in the circumstances of the case it would not be fair to rely on the untested material. If, on the other hand, the Board considered that the evidence should be considered, then it would have to decide what weight ought to be allocated to it. Moreover, Miss Stern submitted that where, as here, the Board had given careful consideration to the question of the hearsay evidence, then in accordance with the decision in the Guinness case, this court should be reluctant to interfere with that decision. 
38.	Miss Kaufmann submitted that this argument confused admissibility and the reliability of the evidence or, to put it another way, fairness and rationality. She said that the issue of admissibility should be considered prior to the evidence being adduced. If the evidence of rape were excluded, then it could not be introduced by way of hearsay. 
39.	There is, therefore, a real practical difference between the two positions. Under Miss Stern's analysis it is open to the Board to consider the whole range of evidence when deciding whether the untested evidence can be relied upon and to what extent. For example, in this case the Board gave weight to the claimant's own responses when questioned. By contrast, Miss Kaufmann says that the Board ought not to have questioned him about the rape incident at all; nor should it have allowed evidence from the social workers about that matter. It could not look at matters in the round when the crucial evidence on which the Secretary of State relied had not been the subject of cross-examination. 
40.	Miss Kaufmann accepts that in general the Board can rely upon hearsay evidence but submits that there are exceptional features here which make it unfair to do so. First, there is the consequence of the Board's decision to the claimant. She pointed out that once the allegations of rape had been made and accepted by the Board, it would have a profound effect upon this prisoner in particular. The evidence of Ms Langhorne, if accepted, suggested that there had been no reduction in either the nature or degree of risk posed by the claimant for a period of at least 25 years since the life sentence was first imposed. Miss Kaufmann submits that there must be a real issue as to whether he will ever in truth now be released. Miss Stern counsels caution about drawing any such inference and says that it is dangerous to speculate about the future. Plainly that is so, but I think I can fairly conclude that at its lowest the decision of the Parole Board will almost inevitably lead, for understandable reasons, to a very conservative approach to the question of his release in future. Moreover, I accept that the finding will have profound effect upon his future management and progress in prison. For example, he would have to start afresh on behaviour offending programmes before being considered for release, that being one of the matters identified by the Board. 
41.	The second reason advanced for suggesting that the evidence should have been ignored here was that it was so central to the conclusion of the Board. It was the allegations of rape that caused the claimant's recall in the first instance. Although the Board had also relied upon other matters, Miss Kaufmann submits, and I accept that it is quite clear from the decision, that the allegations from Ms Langhorne were fundamental to this decision. 
42.	The claimant contends that this case is akin to the decision of the Divisional Court in R v. Hull Prison Visitors ex parte St Germain [1979] 1 WLR 1401. In that case the court held that it was unfair for the Board of prisoners to rely upon hearsay evidence relating to the conduct of some prisoners during a prison riot. The effect of their finding, if adverse to a prisoner, was to add a very significant period to the sentence that would have to be served. Lord Geoffrey Lane in the course of giving judgment, and after having commented that hearsay evidence was in principle admissible before the visitors, said this at page 1409: 
“However, it is clear that the entitlement of the Board to admit hearsay evidence is subject to the overriding obligation to provide the accused with a fair hearing. Depending upon the facts of the particular case and the nature of the hearsay evidence provided to the Board, the obligation to give the accused a fair chance to exculpate himself, or a fair opportunity to controvert the charge – to quote the phrases used in the cases cited above – or a proper or full opportunity of presenting his case – to quote the language of section 47 or rule 49 – may oblige the Board not only to inform the accused of the hearsay evidence but also to give the accused a sufficient opportunity to deal with that evidence. Again, depending upon the nature of that evidence and the particular circumstances of the case, a sufficient opportunity to deal with the hearsay evidence may well involve the cross-examination of the witness whose evidence of the witness whose evidence is initially before the Board in the form of hearsay.”
43.	He added that to deprive the prisoner of the opportunity of cross-examination “would be tantamount to depriving him of a fair hearing.
44.	His Lordship went on to say that if for some reason cross-examination could not be arranged, then “the Board should refuse to admit that evidence, or, if it has already come to their notice, should expressly dismiss it from their consideration”. 
45.	Miss Kaufmann submits that these observations are equally applicable here. The consequences to the claimant are no less serious than they were for the prisoners in the St Germain case. Indeed, they are almost certainly worse. It is simply unfair to rely on disputed evidence which is so central to the case without the claimant having the opportunity fully to test it. 
46.	Miss Stern contends that there is a fundamental difference between the St Germain case and the decision of the Parole Board. In St Germain the court was considering the question of whether certain disciplinary offences had been committed which were unconnected with the original conviction, whereas the Board has to assess the risks to the public of conduct which is connected to the original sentence, and in circumstances, moreover, where any doubts are to be resolved in favour of protecting the public by continuing detention. The difference between the two functions was recognised by Simon Brown LJ in the West case at paragraph 30 when he referred to the Board's functions being preventive and protective rather than punitive and deterrent. 
47.	I broadly accept Miss Stern's submissions although with some qualification. The issue of fairness should not be confused with the issue of admissibility. The Parole Board clearly can rely upon hearsay evidence, but it may sometimes be unfair to do so. However, in my view that will rarely – possibly it may never - be so in cases where the witness is unable or plainly unwilling to give evidence. The Board must protect the public interests and that may require the prisoner to respond to important allegations even if the maker of the allegations is not available, for whatever reason, to be cross-examined. The prisoner's own response to the allegations, even if untested by cross-examination of the witness making those allegations, may of itself justify the conclusion that he should remain in detention. On Miss Kaufmann's analysis he could not even be asked to respond to the most serious allegations if the primary evidence had not been tested. 
48.	I do not believe that the public interest would be fully and effectively protected if such a rule were to apply. The inability to cross-examine is an important factor in determining the weight to give to the evidence, as is the highly prejudicial nature of the allegation. But in my judgment the public interest requires that in principle, and in an appropriate case, the Board should be able to rely on untested evidence provided that taking all the evidence in the round it can properly satisfy itself that the statutory criteria for detention have been met. 
49.	It does not, however, follow from this that the failure to cross-examine only goes to the weight, if any, which the Board is entitled to give to the untested evidence. Even if the evidence actually adduced before the Board is capable of justifying a decision not to release, none the less the refusal to permit cross-examination of a witness whose evidence is central to the case may well in many circumstances render the decision unfair if the witness could have been made available and the failure to do so deprived the prisoner of an opportunity to cast doubt on that witness's testimony. This would in my view be an entirely different case if Ms Langhorne had been willing to give evidence and the Board had simply dispensed with the need for her to do so. 
50.	The extent to which the Board is able to secure fairness will depend upon its ability to secure the attendance of important witnesses. As Judge Inigo Bing, the chairman of this panel, observed in the witness statement which was produced to me, it is not unusual for the Board to find that a witness is reluctant to give evidence before the Board, either through fear of the prisoner, or because they are close to or acquainted with the prisoner and do not wish adversely to affect his chances of release. In a wider context, in the case of rape or other sexual assaults, it is common knowledge that complainants are often reluctant to come forward to give evidence against their assailant for a whole raft of reasons. The reluctance is reinforced in this case by the close, personal, romantic attachment between prisoner and complainant. In these circumstances I agree with the view expressed by Judge Bing that it would be wrong for the Board to act on the presumption that a reluctant witness - and, I would add, particularly one who is a complainant of alleged rape - is refusing to testify in person because he or she is unwilling to have the evidence tested by cross-examination. It would in my judgment be both unrealistic and irresponsible for the Board in such cases to ignore such evidence altogether as a matter of course. 
51.	Ultimately the Board's obligation to protect the public requires it to make the best of the evidence made available to it. Whereas in criminal or disciplinary hearings fairness demands that certain evidence should not be admitted at all if it is not capable of being challenged by cross-examination, in my judgment the same considerations do not apply where the functions of the Parole Board are in issue. The quality of the evidence must be carefully assessed and the implications of the fact that some important evidence has been untested must be kept very firmly in mind. Plainly they may lead to the conclusion that it would be wrong for the Board in the circumstances to give any, or any significant, weight to that evidence. But finally, and to the extent that the Board’s functions and considerations of fairness may be irreconcilable, the need to protect the public must take priority over securing fairness to the individual. 
	The Board should have compelled attendance The Board should have compelled attendance The Board should have compelled attendance 
52.	I shall deal with this issue briefly. Miss Kaufmann submits that in the circumstances fairness demanded that the Parole Board should have caused a witness summons to be issued to compel the attendance of Ms Langhorne. There was some dispute before me as to whether it could do that, but I am inclined to think that it could pursuant to section 32(3) of the Criminal Justice Act 1991. But even if it could, it cannot in my view be said to have been unfair for it to have failed to do so here, or even for it not to have considered the matter. I say this for two reasons in particular. First, at no stage was it ever suggested that it ought to take that step. On the contrary, it was very late in the day that the Board finally discovered that Ms Langhorne would not be appearing as a witness despite the Board having directed that she ought to appear. Moreover, at that stage the claimant was strongly pressing for the case to go ahead and, as I have indicated, had even raised the spectre that the delays to that point infringed Article 5 of the European Convention of Human Rights. 
53.	In the West case, to which I made reference, Sedley LJ noted that a prisoner who did not ask for an oral hearing before the Parole Board could not ordinarily expect one (para.44). Similarly here; seeking to compel attendance of a plainly reluctant witness was not a step which fairness plainly dictated. 
54.	That leads to the second reason. It was open to the claimant to obtain such an order himself. Had fairness dictated this, one would reasonably expect him either to have done so or, at the very least, to have suggested that the Parole Board or the Secretary of State should consider doing so, notwithstanding any resultant delays. Instead of that the claimant wished the matter to go ahead.
55.	I accept that there may be occasions when the Parole Board should consider the possibility of taking this course, although this was not such a case. Moreover, had the Parole Board been so requested, and had it concluded in the circumstances that seeking such an order would be quite fruitless, then I doubt whether that decision could have been challenged. 
	The conclusions of the Board was unsafe 
56.	As I have said, this argument was advanced on the basis of fairness, but in my view it can only succeed if it can be said that in the circumstances - and I include in that the consequences to the claimant - the decision was not rationally supported by the evidence. Miss Kaufmann points to certain features which cast doubts on the strength of the evidence that the rapes occurred. These included the fact that no allegations of rape had been made until some five months after they were alleged to have occurred; that no particulars were ever given; that undue weight had been given to Ms Saddington's perception that Ms Langhorne had been telling the truth; and that Ms Saddington's own account of a conversation with Ms Langhorne had itself been made without the benefit of notes made at the time and which she had destroyed. 
57.	I reject this argument. The Parole Board expressly reconvened to hear legal submissions on the reliability of Ms Langhorne's evidence, which included the statement made under section 9 of the Criminal Justice Act 1967. They set out very carefully the factors which were prejudicial to the claimant and also those which they felt were consistent with her account and which had been given on three separate occasions. They also had regard to the claimant's own response under questioning. I do not think it can possibly be said that they were not entitled to conclude that the account given by Ms Langhorne was more likely to be true than not. They set out in some detail, and most cogently, the reasons for reaching this conclusion. Having so concluded, continued detention was inevitable.
	Conclusions Conclusions Conclusions 
58.	The Board's function is to protect the public from the risk of harm. It must refuse release unless satisfied that it is no longer necessary for the protection of the public to detain the claimant. In this case the Board was faced with a witness who had set her face against giving evidence, but who was making serious allegations which, if true, were highly relevant to the assessment of the risk of future harm. 
59.	The Board recognised the risks in relying on this hearsay evidence. They heard submissions specifically on the questions whether it ought to be admitted and, if so, what weight could properly be attached to it. They were acutely aware of the dangers of acting on untested evidence; they were alive to the potential injustice to the claimant that it might create; and they gave cogent and carefully reasoned grounds for reaching the conclusion that it was “more likely than not” that the rapes had occurred. The Board acted here with conspicuous care. I do not see that its conclusion can be faulted. 
60.	Accordingly, I dismiss this application. 
61.	MISS KAUFMANN: My Lord, I do seek leave to appeal. It is a very narrow point and it is an important point of principle as to whether there comes a point irrespective of whether the witness can, is willing to – whether or not the evidence should be admitted.
62.	MISS STERN: My Lord, we oppose that application. As your Lordship is aware, the case of Sim is going to the Court of Appeal.
63.	MR JUSTICE ELIAS: It does not really raise this issue though, does it?
64.	MISS STERN: My Lord, it raises the general question of approach to hearsay evidence in Parole Board proceedings, and given your Lordship’s conclusions on the facts of this case, it is our submission that this is not a case which merits going to the Court of Appeal just for a consideration of the point of general principle, particularly given that the case of Sim is already before the Court of Appeal
65.	MR JUSTICE ELIAS: You will have to remind me what – I remember vaguely what Sim is about but I cannot remember why this point on evidence is –
66.	MISS STERN: In Sim the submission made to your Lordship I believe by Mr Fitzgerald is that hearsay evidence should never properly be taken into account by the Board in exercising its functions. Your Lordship’s conclusion was that that was not right and that as a matter of generality hearsay evidence could be taken into account by the Board, but there might exceptionally be cases where it would be unfair for the Board to proceed solely on the basis of hearsay evidence. So the issue as to the circumstances in which the Board might be acting unfairly in doing so will be before the Court of Appeal in that case.
67.	MR JUSTICE ELIAS: Do you know when the Court of Appeal will hear that case?
68.	MISS STERN: In October, I believe, and one would assume that your Lordship’s judgment in this case will be put before the Court of Appeal on that issue. But that simply is as to the point of general principle. Our second submission is that, given the facts and your Lordship’s very clear approach and reasoning as to the facts of this case and why it was fair to proceed, this is not an appropriate case to proceed to the Court of Appeal.
69.	MR JUSTICE ELIAS: Miss Kaufmann, I am inclined to say no, but with an indication perhaps that the Court of Appeal itself might like to consider whether in the circumstances leave might be given and this case put together with the Sim case, if it felt that it was helpful to have this point, as it were, debated together with Sim.
70.	MISS KAUFMANN: Before your Lordship is decisively certain may I just say something which Miss Stern raised. Your Lordship initially said that he did not think that the Sim case would raise this point and I think that is something ---
71.	MR JUSTICE ELIAS: I cannot –--
72.	MISS KAUFMANN: What is particular about this case, what is special about this case, is first of all the facts are so stark that if –- there can hardly be a better case where that question of pure threshold falls to be decided. That is not what the Sim case says. In Sim it was a situation where there were numerous allegations about drinking. He accepted that he had been drinking. The question was whether he had been drinking more than he was prepared to accept. There were all sorts of other complaints about his conduct whilst on licence. So it was a classic case in which, as your Lordship decided, the particular and different function that the Board performed in assessing risk set this apart very clearly from a disciplinary process. So it is not an apt case to deal with this kind of threshold question because the circumstances and the facts are simply not such as to give rise to the possibility for the court to determine that.
73.	So there is a danger, if leave is not granted, that this issue will simply remain unresolved. For that reason I would submit that that is a reason to grant leave here. Certainly the Court of Appeal could then link this case up so that the very narrow point here could be decided in the same proceedings.
74.	MR JUSTICE ELIAS: I think the Court of Appeal has to decide whether to link this case up and it may will be a suitable case to be linked up. They would be in a better position to decide also whether they would think it appropriate to give leave. I am not refusing leave because there is no point of public interest involved, but it does seem to me that if this case is to go up to the Court of Appeal, then it may well make sense for it to be heard with Sim. That is a point that will have to be considered by the Court of Appeal. In the circumstances I think it would be right for them to consider the whole question of leave and whether it should be heard.
75.	MISS KAUFMANN: May I also ask for my costs.
76.	MR JUSTICE ELIAS: Legal aid costs and so on. Thank you both very much indeed.