OUTER HOUSE, COURT OF SESSION [2006] CSOH 181
	OPINION OF LORD McEWAN in Petition and Answers ALEXANDER BIRRELL Petitioner; for Judicial Review ________________

Petitioner: Carmichael; Balfour & Manson

First Respondents: Dunlop; Anderson Strathern

Second Respondents: Lake, Henderson; Office of the Scottish Executive

30 November 2006

[1] On 20 May 1991 at West Granton Crescent in Edinburgh, a house was set on fire in which were living a grandmother and two young children aged 5 and 4. The fire took hold and all three occupants died. The present petitioner, his son and another man were charged with murder. On 24 October 1991 in the High Court at Edinburgh, the present petitioner and his son were convicted of murder and the co‑accused of culpable homicide. At the time of the offence, the petitioner was aged 39 years and was sentenced to imprisonment for life. The punishment part was later set at 15 years. His son was also sentenced to life imprisonment and the co-accused to 12 years. At the material time, the petitioner had a previous conviction in 1974 for assault to severe injury, for which crime he received a sentence of 5 years' imprisonment. Time has gone on and since the punishment part of the petitioner's sentence is nearing expiry, his case was referred to the Parole Board under and in terms of Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and the relevant rules of 2001 which apply to the Board.

[2] On 6 July 2006, a Life Prisoner Tribunal was convened in relation to the petitioner's case. The petitioner was present. He was represented by a solicitor-advocate. The Parole Board was represented and the Scottish Executive Justice Department were also represented. Having heard certain matters to which I will return, the decision of the Parole Board Tribunal was to refuse to direct the petitioner's release. A further review of the case was ordered to take place on 5 January 2007. It is against this refusal by the Tribunal that the petitioner now raises the present Judicial Review. In the Petition Statement 3, the petitioner seeks declarator that the Tribunal erred in law, acted unreasonably and acted in a manner incompatible with the petitioner's Convention rights and finally failed to act in a procedurally fair manner in making the July decision. He also seeks reduction of the decision of the Tribunal of 18 July 2006. The relief sought is expanded upon in Statement 10 of the Petition and before me only articles 10.1, 10.2 and 10.3 were argued. The remaining articles, 10.4, 10.5 and 10.6 were expressly abandoned by counsel for the petitioner. The decision letter of the Parole Board for Scotland is dated 18 July 2006 and is number 6/1 of process in the Petition before me.

[3] In the course of the hearing, I was referred to a number of authorities viz R (Sim) v Parole Board [2004] QB 1288; R v Board of Visitors of Hull Prison ex parte St Germain &c [1979] 1WLR 1401; R (Brooks) v The Parole Board and the Home Secretary [2004] 1 Prison Law Reports 324; R (West) v Parole Board [2005] 1WLR 350; R (Roberts) v Parole Board [2005] 2 AC 738 and in re McClean [2005] UK HL 46.

[4] Miss Carmichael appeared for the petitioner and moved me to sustain her plea‑in-law and make orders under paragraphs 3a and 3b of the Petition. She referred to the refusal letter number 6/1 of process dated 18 July 2006 and the reasons given for refusing parole in that letter. She pointed out that the Tribunal had acted on evidence which at best was hearsay of hearsay concerning the information about guns and revenge. She did accept that the police witness who appeared before the Tribunal had been cross-examined. She took me then to Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 and also to the Parole Board (Scotland) Rules 2001. She highlighted a number of these rules, in particular, Rule 6 which deals with damaging information which in appropriate cases does not have to be disclosed to a prisoner. It is worthwhile noting at this stage that such damaging information has to be contained in writing or a document. She then took me to Part Four of the Rules, pointing out that the damaging information provision did not apply to a Part Four case. These cases were for life sentence prisoners. She also drew attention to the fact that, in the case of life sentence prisoners, the Parole Board acted as a Tribunal and it was composed in accordance with Rule 18. The procedure was dealt with in the following rules including power to cite witnesses and require documents (Rule 24). Rule 27 allowed the Tribunal to regulate its procedure and hearing "in such manner as it considers most suitable to the clarification of the issues before it". In the present case, all parties had been afforded a hearing.

[5] Miss Carmichael said that her complaint in the present case was that the police evidence about the intelligence concerning the guns was hearsay of hearsay. The point was so fundamental that fairness required that it be tested at source before the Tribunal should have taken any account of it. They had a duty to disregard it. She referred me to Sim and various passages in the Opinion of the Court of Appeal. She accepted that in appropriate cases, the Court could take account of hearsay but under reference to paragraph 57 in the Opinion of Keene LJ, she said that the present allegation was "so fundamental" that the absence of an opportunity to question the source rendered the reception of the information unfair. Contrasting Sim's case, she argued that in that case there was enough evidence anyway without the disputed hearsay evidence about Sim's drinking and behaviour in the hostel. In the present case, there was nothing else on the face of the decision, because the petitioner was said to be a model prisoner and had even been tested on home leave.

[6] Next, she referred me to the Hull Prison case. That was a slightly different set of facts because the various prisoners involved in the riot were accused of offences against prison discipline and there was plainly a need for better evidence than was received by the visitors. Next she referred me to the case of Brooks. The case was unusual because the primary source, described only as Miss S L, was known to all parties. It was also known what her allegation was and where she lived. Insufficient attempts were made to secure her attendance before the Parole Board. She founded on the dissenting Opinion of Clarke LJ. The girl's evidence was so fundamental that she should have been brought, in order to be cross-examined. It was also said in that case that it was unprofitable to speculate as to what she might have said had she attended. In the present case, no-one had been identified as the source and the source was the only material. She returned to notice that in Brooks there were a number of other factors against the prisoner which entitled the Parole Board to take the view that it did, quite apart from the absence of Miss S L.

[7] Returning to her Petition, she drew attention to Article 10.1 and said that the procedure had to be fair at Common Law. In the present case, it was not fair and that also meant that there was a breach of Article 5(4) of the European Convention on Human Rights. She referred to West and quoted extensively from the speech of Lord Bingham at paragraph 27 through to 37. Her final position on West was that, if fairness at Common Law was breached, that that offended against Article 5(4).

[8] Next she referred to the case of Roberts. That was a highly unusual case, again involving a life prisoner. Because certain information was sensitive, the Parole Board appointed a special advocate to act for Roberts. That meant, as the case tells us, that some information was given to the prisoner but important information was only made available to the special advocate and which could not be communicated to the prisoner or his legal representatives. On the other hand, she accepted that the use of the special advocate entitled the sensitive information to be properly challenged as best he could. In the present case, however, the opportunity which Mr Scott, the petitioner's solicitor-advocate, had to cross-examine the police officer was completely valueless because he was not prepared to disclose the primary source of his information. That could have been because he was unwilling to do so or because he was unaware of who the source was. Roberts pointed out that, in certain cases, information fell into what was called "a grey area". In the present case, the facts fell on the unacceptable side of that area. It was important to notice that the Board made the next review of the petitioner's case at an early date. They could have waited much longer, and that indicated their unhappiness at the information before them. What they should have done was refuse to take it into account or to have adopted a procedure to compel better evidence to be made available.

[9] Miss Carmichael concluded by referring me to paragraphs 10.2 and 10.3 of her Petition. She argued that the Tribunal had to decide whether the information was true. They had been asked to conclude that there was a risk. For that, there had to be facts and it was not enough that an allegation had been made. The evidence before them could not have satisfied any reasonable decision maker. At best it was hearsay of hearsay and no view on credibility and reliability could have been formed.

[10] Mr Dunlop, in his reply, invited me to refuse the prayer of the Petition. He accepted that the Tribunal had to demonstrate procedural fairness, but the Tribunal could in no sense be equated to a court of law which was charged with a wholly different task. He accepted that if the Tribunal had adopted a fair procedure at Common Law, that would satisfy the provisions of Article 5(4) of the Convention. For that proposition, he referred me to various passages in the case of Roberts, pointing out that the whole purpose of receiving information from an informant is to keep their identity secret. The case of West made it very plain that the Parole Board were not determining a criminal charge. That distinguished the situation from the Hull Prison case. Mr Dunlop said the case was not in point because what the visitors were doing in that case was to determine a criminal charge arising out of the rioting, the proof of which would mean more loss of liberty. Such was absent here because the petitioner had already been sentenced to life imprisonment. To refuse parole was not a fresh penalty once the punishment part of his sentence had expired.

[11] In all cases, fairness turned on the facts of the particular case and the context of the hearing and the procedure adopted. Some matters had to be done secretly to be effective. In the present case, the need to protect the source of the information about guns, was the context. The petitioner had no right to cross the original source. That would mean that the Tribunal could never rely on the source of information unless a person was produced and made available for cross-examination. In the case of an informant, that would make them useless and at risk. Their only safety was anonymity. It would also mean that the Board could not take account of "intelligence information". An example of the need to protect a source gave rise to the solution adopted in the case of Roberts. Mr Dunlop accepted that the solution was very extreme because Roberts knew nothing. Plainly the court was unhappy but nonetheless allowed the special advocate to act.

[12] Mr Dunlop then referred me to the case of McClean from Northern Ireland. Once again this concerned a life prisoner and the facts were very unusual. The case was authority for how the Tribunal ought to act. There was no question of an onus of proof being on any party before this Tribunal (the Tribunal in the case of McClean was called Commissioners). What had to be done was make an informed assessment of risk and that was what the present Tribunal had to do. It was interesting to note that in McClean, the secret information was not relied upon by the Commissioners. Contrasting the present case, Mr Dunlop said that the petitioner knew what the allegation was unlike the special secret information in the case of McClean which was only disclosed to a specially appointed advocate. In the present case, there was no requirement either by statute or by rules of practice to require the Tribunal to find anything proved as true. What they had to do was to take all the information and assess the risk. Sim was only authority for the need in exceptional cases to introduce the cross-examination of a primary source and the remarks made about it were in any event obiter to the decision. There could be no universal rule that there was a right to cross-examine. Turning to the case of Brooks, Mr Dunlop pointed out that what a party asked for at a hearing is part of the context. In the present case, there was no objection to the admission of the evidence of the police officer and he was at least cross-examined. It had to be noticed that Clarke LJ only dissented on one of the questions before the Court of Appeal in the case of Brooks and for that reason the view of the majority should be preferred. Also in the case of Brooks the witness who never appeared was not in any danger. That could not be said about the present case.

[13] Fairness had to be judged on the whole context of the case. In the first place, the index offence - the murder of three innocent people - was very serious and showed a degree of planning. Secondly, the information about the wish to obtain guns came from an informant. Cross-examination of the source of this information was not a realistic possibility and that made the present case stronger than Sim or Brooks, which were, in any event, much less serious cases. Thirdly, the solution adopted by the Tribunal was in no way as drastic as seen in Roberts and McClean. Fourthly, no objection was taken to the evidence or any attempt made to ask for the source to be made available. Fifthly, the totality of the decision showed that the Board did not decide to proceed uncritically on the basis of the hearsay evidence. They ordered an early reconsideration of the petitioner's case although they could have allowed up to two years for that. It was plain from their decision that they were concerned, since they have asked for more detail (see 6/1 last page). They could have done nothing else. They were not entitled to ignore the intelligence; they were bound to have regard to it.

[14] Referring to the Petition 10.2 and 10.3, Mr Dunlop said the issue was not whether the information before the Board was true. They were only assessing a risk. Plainly, if the information was true, then there would be a risk but it did not follow that if the information was not true there could still not be a risk. The hearsay in this case was plainly of the utmost gravity. It was suggested that the petitioner would carry out harmful acts and the Board were entitled to take the view which it did.

[15] Mr Dunlop did raise the argument that the order sought was of little use because of the early reconsideration, but he wisely did not press the point.

[16] Mr Lake adopted the submissions of Mr Dunlop and added only a few remarks. He pointed out that in terms of Section 2(5)(b) of the Statute, the Parole Board had addressed the correct test. It had asked itself the proper questions in its proceedings and arrived at an answer which could not be challenged. Mr Lake also pointed out that the case of Sim attracted the speciality of an extended sentence and was wholly different from a case involving a life prisoner as here.

[17] I allowed Miss Carmichael a final reply. She said that the Tribunal had failed to be proactive and they should have left out of account the evidence which was hearsay or at least asked for more detail. The case of McClean was a very extreme case in the context of terrorism in Northern Ireland. Mr Scott, who had appeared for the petitioner before the Tribunal, could not be criticised. Whatever he did, the Tribunal itself had a duty to adopt a fair procedure and had not done so in the present case. She renewed the motions she made earlier.

[18] Let me now turn to consider the Irish case of in re McClean [2005] UK HL 46. It was indeed a case of the utmost seriousness involving a dreadful sectarian murder in a pub in County Down. It was mixed in with the complex political and legal issues arising out of the "Good Friday" agreement of April 1998 which led to a general amnesty and release of prisoners. On 3 March 1998, the respondent and another man entered the public house wearing masks and carrying guns. They mistakenly believed all the occupants were Roman Catholic. They opened fire and when they left, two customers were dead and two others severely injured. The respondent was arrested some days later and on 2 February 2000 was convicted of two murders, two attempted murders and various firearms offences. He was sentenced to life imprisonment and other long determinate terms. The trial judge described the crimes as infamous and heinous.

[19] The next day, he applied to the Commissioners (for present purposes, the same as the Parole Board) for a declaration that he was eligible for release under the relevant "Good Friday" legislation. On 14 April, the Commissioners gave a preliminary indication that they were minded to grant his application, and as that went unchallenged, on 2 May made a substantive declaration that he was eligible for accelerated release. He was, in the meantime, on pre-release home leave. Then things began to go wrong for him.

[20] On 5 July, he got involved with others in an incident at Banbridge, County Down. It arose out of removal of the flags of one loyalist faction by supporters of another. When it was all over a man was seriously injured. The respondent was arrested and charged with attempted murder. Within days, the Secretary of State applied to the Commissioners to revoke the declaration of eligibility. He founded on the new offence as showing that the respondent did not now fulfil one of the pre-release conditions of "not being a danger to the public". The Commissioners agreed, and gave a preliminary indication that they were minded to grant the application to revoke. The respondent challenged that.

[21] Matters moved on. In 2001, the respondent was acquitted at his trial on the Banbridge matters but the trial judge found he was involved in the removal of UVF flags which the victim was protecting. When the Commissioners met in 2002 to determine the release, the Secretary of State founded on the Banbridge incident; a belief that the respondent supported a named paramilitary organisation (the LVF) and finally on additional grounds described as a secret intelligence summary. The Secretary of State had power to withhold the information from the respondent provided he released to him "the gist of the information". That was done against opposition, and the Commissioners then appointed a special advocate to represent the respondent. Later, after a hearing, the Commissioners refused release. They had heard evidence from the respondent and the Secretary of State as well as officers of police in a closed session on the recent intelligence described as "damaging information". The special advocate was of course present.

[22] In the result, the Commissioners in fact took no account of the damaging information in reaching their decision to refuse release, and founded on the events at Banbridge and ongoing feuding between the paramilitary factions mentioned. They were unable to conclude that he was not a danger to the public.

[23] In the House of Lords, much of the discussion was devoted to the question of onus of proof and the presentation of the damaging information (see Lord Bingham paragraph 20). Their Lordships were unanimous in dismissing the appeal and supporting the Commissioners.

[24] It was important to notice that of the four pre-release tests (narrated by Lord Bingham in paragraph 3), some were factual and others called for a predictive judgment. The judges in the Courts below were divided as to who had the onus of proof. Relying on earlier cases (paragraph 26), Lord Bingham was of the opinion that, when making a judgment about future risk, cases should not be decided on burden of proof. The Commissioners were there to protect the safety of the public and could not gamble with that (paragraph 29). The respondent's rights, however important, could not override public safety. With a life sentence prisoner (unlike those with a determinate sentence), there can be no presumption in his favour that he would not be a danger to the public if released. Lord Bingham went on to say that he could not fault the way the Commissioners had assessed the facts.

[25] In his speech, Lord Carswell gave guidance on this issue of burden of proof. He set out the facts (paragraphs 56 to 68) then dealt with the division of opinion in the lower courts. He carefully analysed the structure of the Commissioners and the legislation as well as the material before them (paragraphs 69 to 80). I take from these paragraphs the following salient points. The Commissioners were concerned to form an opinion about whether the respondent was a danger to the public. To that, it was difficult to apply the traditional principles of the rules of evidence. It was not a matter of establishing facts by proof, although in some cases that might be necessary. It was an administrative decision not a legal contest. The Commissioners had to seek information from whatever source it may be obtained. There was no burden of proof on either party (paragraph 78). Although the Commissioners had been misled about the burden of proof, when it came to their actual decision they took the correct approach and reached a valid decision.

[26] Lord Brown delivered a concurring speech on this point, remarking that in this "evaluative" process with a mandatory life prisoner any doubt must be resolved against him. Lords Scott and Rodger concurred on this point.

[27] The Court then discussed the use of the "damaging information" presented only to the Commissioners and the special advocate. Lord Bingham between paragraphs 33 to 37 held that the procedure was fair to the respondent. The Rules had been followed and the respondent had been told the gist of the information. It must have been clear that it concerned paramilitary activities with which the facts shown about the Banbridge incident were entirely consistent. Most importantly, however, the Commissioners had taken no account of the "damaging information". (Interestingly, Lord Bingham rejected any contention that the Commissioners would not have been able to put it out of their minds (paragraph 36)). As to fairness overall, he held that this meant not fairness in theory but fairness as applied to the respondent (paragraphs 34 and 37). Whatever Article 5(4) of the Convention said, there was no single unvarying standard of fairness to be applied inflexibly irrespective of context. Lord Scott (paragraphs 51 to 53), Lord Carswell (paragraph 81) and Lord Brown (paragraph 87) delivered concurring speeches on this point.

[28] R (Sim) v Parole Board [2004] QB 1288 (Court of Appeal) was referred to. It had the unusual feature of being concerned with an extended sentence. What happened was this. The claimant was sentenced in the Crown Court in February 2000 to an extended sentence of 71/2 years, the custodial term being 30 months. He had been convicted after trial of indecent assault and indecency with a child. He had a record for offences of violence. He was released on licence in January 2001. His release was subject to many conditions, one of which was to reside in a Bail Hostel and not to return there under the influence of alcohol. Within 6 months, he was recalled to prison and thereafter, in April 2002 after a hearing, the Parole Board refused to direct his release. On a claim for judicial review before a single judge (Elias J), his continued detention was deemed lawful. Both parties appealed.

[29] This case raised a number of points which do not arise before me. Much was made of the specialities of the extended sentence as also an argument on onus of proof and presumptions. The case, however, was cited to me for what was described (paragraph 52) as the third issue. That was whether the Parole Board could take account of hearsay evidence about his returning drunk to the hostel and being aggressive to those within. It was argued that witnesses should have been called and been available for cross-examination. (It is plain from paragraph 59 that there was little merit in this argument on the whole facts of the case.) However, the Court gave guidance on how risk assessment had to be carried out (paragraphs 56 and 57). All the Board had to do was to bear in mind that the evidence on some factual matters might be hearsay and to reflect what weight they attached to it. Obiter, as I read it at paragraph 57, it was said that some matters might be so fundamental to a decision that they could not be taken account of unless tested by cross-examination. This echoed the opinion of the single judge (paragraphs 59 and 60) who rejected the contention that disputed facts must always be resolved by primary evidence.

[30] I now turn to consider Regina v Board of Visitors of Hull Prison ex parte St Germain &c [1979] 1WLR 1401. In context this case is quite different from the other cases cited to me. These were several writs of certiorari by prisoners against varying disciplinary awards made by the Board. What had happened was very simple. For four days in the summer of 1976 there had been a major riot at the prison. Prisoners got onto the roof and most of the prison was damaged. A number of prisoners were charged with offences against discipline and, after hearings, the Board variously awarded loss of privileges, earnings, and remission. The scale of the task faced by the Board was vast and is well described at page 1404 between A and D.

[31] The matters raised concerned very serious breaches of prison discipline and the complaint made was breaches of the Rules of natural justice. The Court of Appeal held (1404G) that this meant that the prisoner had to know what evidence had been given and be given a fair opportunity to correct or contradict it. The charges, if proved, could and did result in substantial loss of liberty (1408E).

[32] The court went on to observe that in certain circumstances where hearsay had come to the notice of the Board, they should exclude it from their consideration (1410A). The real problem in the case is described at 1411. After the riot the prison officers involved had submitted written reports of their observations and naming names.

[33] The prison Governor had these statements. During the hearings he gave the Board information he had derived from these reports (see e.g. 1411D). No names were given to the prisoner and he was not even allowed to comment on what the Governor had said.

[34] On the facts it was clear that the way this hearsay evidence was handled produced a substantial and not a technical injustice. Even so it was "with some reluctance" that the applications were granted.

[35] To describe the case as I have, shows how different it is to the facts before me. In the first place, the Board were fact finding and the matters at issue were in effect criminal charges arising from the riot. The disposals given were tantamount to penalties. That is not the case in the review before me where the exercise is not to find facts but to make a value judgment. The way any hearsay is relied on here is quite different both procedurally and in substance from the Hull case.

[36] R (West) v Parole Board [2005] 1WLR 350 was referred to. It was a conjoined appeal. Both were short term prisoners recalled for breach of licence conditions. The point at issue in both cases was whether the claimant was entitled to an oral hearing. That had been denied. The decision in the case was that such a denial amounted to a procedural unfairness. Consideration of the written representation was not enough. The House also made clear two specific points viz if a review by a Parole Board was conducted with the fairness which the common law required that would amount to compliance with Article 5(4) of the convention (Lord Slynn paragraph 55; Lord Hope paragraph 72) and that recalling a prisoner on licence is not a punishment (Lord Slynn paragraph 56).

[37] R (Brooks) v Parole Board and Home Secretary [2004] 1 PLR 325 concerned a discretionary life prisoner. He had been sentenced for rape and given determinate sentences for other sexual offences. When on licence an allegation of rape was made by his then partner SL and he was recalled. I was referred to the case mainly for the approach the Board took to the attendance of SL to speak to her allegation. Before returning to that it should be noticed that the Board found other reasons to refuse to direct his release (see paragraphs 80, 81 and 83) and the Court of Appeal unanimously sustained that. They were also unanimous that in the circumstances the Board were entitled to rely on hearsay evidence about the rape and the credibility of SL (see paragraphs 38, 72 and 74).

[38] There was only a dissent on whether more should have been done, and if so by whom, to secure SL's attendance. She was either unwilling or afraid to attend. She was not compelled to attend and the Board (who were not asked to) could have directed the Home Secretary to arrange her attendance (see paragraphs 32 to 35). The claimant allowed the hearing to proceed in her absence without protest (see paragraph 91) and indeed there may have been advantages to him is so doing. In my view, the only importance of all of this, is that matters had to be judged in the whole procedural context of what took place before the Board. The majority (see paragraphs 33 and 73) were clearly of the view that a Board should be slow to direct an attendance unless asked.

[39] Regina (Roberts) v Parole Board [2005] 2 AC 738 involved a life prisoner. He had been sentenced for the murder in 1966 of three police officers. When he became eligible for release on licence he was accused of drug dealing and various offences against prison discipline. The Board received information which it decided not to disclose to the prisoner or his legal representation. The reason was that the source of the evidence would be at risk. The material was described as "sensitive material". The material was thus disclosed only to a specially appointed advocate and there was then a two stage hearing, one considering the open material and the other the sensitive material. The specially appointed advocate appeared at both. The Board did have rules under which it could refuse to disclose matters to a prisoner. The decision was by a majority. (Interestingly the Court of Appeal and the single judge all agreed with that majority). The majority held that there was either express or implied power to adopt the proposed procedure and appoint the specially appointed advocate.

[40] The case is authority for two other important points. It was held unanimously that if a fair procedure was adopted at common law this would satisfy Article 5(4) of the Convention (see e.g. Lord Bingham paragraph 19; Lord Woolfe paragraph 83 and Lord Rodger paragraph 112). It also acknowledged that there was a triumvirate of interests viz the public, the prisoner and third parties (see e.g. Lord Woolfe paragraphs 48 and 76; Lord Carswell paragraph 128). In the final balance, the Board was bound to give preponderant weight to the need to protect the public.

[41] What then is the result of all of this in the present case. It is my decision to refuse the prayer of the Petition and to deny the declarator and reduction which the Petitioner seeks. I return to the decision letter No 6/1 of Process. As Mr Lake said to me, the Life Prisoner Tribunal has stated the correct test which is "... that it must be satisfied that it is no longer necessary for the protection of the public that the petitioner be confined ...". It has then looked at what evidence it had, however poor or otherwise, about the petitioner seeking firearms to exact retribution. Having done so, it has applied the evidence to the test and reached a proper decision. It is simply unarguable to say that, in the whole circumstances, no reasonable Tribunal could have decided as this one did.

[42] It is accepted that the Tribunal acted upon hearsay evidence. In my view on the authorities they were entitled and indeed bound to do so. They were faced with the triangle of interests mentioned in some of the cases. The prisoner had the right to have his case properly heard. I do not think, in the case of a life prisoner, there is any presumption that he has a right to liberty and indeed, in my view, there is a presumption that he remains a risk. The second interest is that of the informer. The relevant authorities have a duty to protect him. Thirdly, and most important of all, the Tribunal has a duty to protect the public. That must prevail over all other interests. Brooks is clear authority for that. I also consider they were entitled to form a view on the reliability of the informer as they did (see 6/1 page 2) (Brooks).

[43] The Tribunal was not asked to secure the attendance of the informer and in my opinion was wise not to be proactive in doing so. The Petitioner was properly represented and his solicitor-advocate had the opportunity to question DC Alan Brooks. It is also important to notice that the Tribunal attached great weight to the original murder and how it had been planned (the index offence).

[44] I wish to add some further remarks in view of the able arguments presented. In my view, the procedure adopted here was fair to all. That is enough to satisfy the common law and Article 5(4) already referred to. There can be no single absolute standard of fairness in theory. It is fairness to the Petitioner that matters. I consider also that mandatory or discretionary life prisoners are to be viewed differently from those on determinate or extended sentences. The cases cited to me make that clear, as they also make clear that there is no burden of proof on any party before the Board. It is not like a court of law. There is no adversarial element. It is generally not fact finding but making a risk assessment or a value judgment (sometimes on matters expressed as a test of a negative). To refuse to release is not to impose a penalty.

[45] As to hearsay in general, there is no rule against it although cases could be figured where it would be fair to exclude it. It is for the Board to assess what weight it should have. Extreme cases can arise where it might be necessary to find facts proved by primary sources of evidence. Such cases would, in my view, be rare.

[46] In the result, I repel the Petitioner's first plea-in-law and sustain the third pleas-in-law for both Respondents. I find it now unnecessary to deal with any remaining pleas.