AC-2024-LDS-000197 - [2025] EWHC 2772 (Admin)

I do not propose to set out all of the evidence which I read - it is not necessary to do so. I read all the evidence contained in the bundle, including the parole board dossier leading to the original decision of 14 May 2024, the representations made to the parole board on behalf of the Claimant, in addition to the judicial review claim documents.

The Defendant relies upon its summary grounds of response. As the Defendant is acting as a tribunal when making decisions about the release of prisoners, it remained neutral and did not assert a positive case. The Interested Party in correspondence dated 18 September 2024 also stated its neutrality and therefore did not file any grounds of response.

A number of grounds were set out by the Claimant asserting that the Defendant reached a decision using a procedurally unfair process because:

The Claimant set out in its grounds some of its representations made to the parole board before the original decision of 14 May 2024. It is not necessary to set out all of the representations. However, I accept the Claimant’s submission that it is useful to set out some of the representations to provide context to both the original decision to decide the matter on the papers and then the impugned decision to refuse an oral hearing.

The relevant paragraphs of the representations are as follows:

“8.

We are mindful that the case was last considered in 2022 when those instructed invited the panel to conclude this case on the papers, at that point, an appropriate pathway had been developed and it was hoped that in the subsequent months Mr Malik would transfer to HMP Long Lartin which he duly did however, his stay at Long Lartin was short lived and he quickly returned to HMP Wakefield. He continues to remain a Category A prisoner and his position could be seen as inequitable if the view is taken that he is now firmly within the rehabilitative part of his sentence having had his tariff expire nearly 14 years ago with limited success in effective rehabilitation, in part through perhaps his won behaviour but of course rehabilitation is fundamentally there to address those behaviours and traits which have a causal link to the risk of harm to others and may in turn be preventing him from progression within his sentence…

13.

We have regard to the comments made by the Community Offender Manager and Prison Offender Manager regarding contact with the Fens Unit and the suggestion that an updated WAIS assessment should be undertaken. This should in our view form a direction as part of the need for an Oral Hearing and an up-to-date psychological risk assessment would also be of value. It cannot be assumed that risk remains the same, there are ambiguities over his IQ assessments and there have been significant changes in formulations in this case over the years, the more recent formulation suggesting personality disorder as being the driver to behaviour beyond concerns in the past regarding mental illness, autism spectrum disorder and learning difficulties.

14.

If he is unsuitable for the Fens Plus service then he is left in an invidious position whereby the routes to rehabilitation are all but non existent and his detention without a route towards rehabilitation would become manifestly unfair given that he is in the rehabilitative stage of his sentence. He is detained pursuant to public protection where remains an ongoing preventative detention that exists until he demonstrates that he meets the public protection test for release.

16.

Mr Malik’s Category A status also has fundamental implications to availability of rehabilitative frameworks within the prison setting, because he is limited to a number of high security prisons. The likely prospect of Mr Malik being able to engage in group-based work is highly unlikely and therefore alternative pathways must be considered.

17.

We are not asking the panel to act in a sentence planning capacity, but it must be considered reasonable to recognise that risk cannot be assessed in isolation of what it takes to reduce risk and parole reviews allow for individuals to understand how their liberty continues to be withheld and it provides them with a vested interest in perhaps understanding the more nuanced issues and areas that need to be addressed for the individual to be progressed along with assisting professionals to do just that.”

18.

The level of scrutiny therefore transcends into not just determining whether or not to recommend a prisoner’s release or a transfer to open conditions but includes other aspects of its decisions such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required and which will in practice have a significant impact upon the individual’s management in prison or on future reviews. This was expressly stated in the case of Osborn and Booth (2013). In Mr Malik’s case he has struggled to participate in core risk reduction work and the case warrants the oversight and careful analysis that an Oral Hearing before the Parole Board provides. The Board must also be independent and impartial and guard against any temptation to refuse an Oral Hearing to save time, trouble and expense and should therefore not simply rely upon previous decisions in evaluating the risk. The evaluation of risk is an everchanging task and one that needs to afford a greater degree of scrutiny at this particular time. In the present case oral evidence is needed to ascertain any changes in the risk that he may post, be it lowering or heightening of risk, this is especially true as there are concerns around his behaviour at HMP Long Lartin regarding escape and there have been a number of behavioural concerns since the last parole review.”

On 29 June 2024 the Defendant made its decision. The very brief reasons provided for its decision did not engage with most of the representations made in the Claimant’s 9 page submission detailing why it was asserted that an oral hearing was necessary in this case. Despite reference in the Claimant’s submissions to the Osborn case, no reference in the Defendant’s decision was made to that case. I agree with the observations of the judge giving permission that it is wholly unclear from the reasoning provided that Osborn was even considered.

It is correct that in the original decision made on the papers, the failure of the Claimant to engage with rehabilitative work during his brief transfer to Long Lartin was noted. However, neither that decision nor the impugned decision gives any consideration as to how the risk posed by the Claimant can be addressed whilst he remains incarcerated. In my judgment, this is an important factor when considering whether an oral hearing is necessary. This is particularly the case where the Claimant is 14 years “post-tariff” and therefore very firmly in the rehabilitative stage of his sentence.

A further clear indicator towards the fairness of holding an oral hearing was the circumstance here where the Claimant was previously on a pathway towards rehabilitative treatment. I accept that sentence planning is not a part of the board’s role. However, in this case, beyond noting some poor engagement by the Claimant, there was no real consideration or analysis of how and why the previous treatment pathway for the Claimant had failed. Further, there appeared to be no consideration of how his risk could be managed or treated moving forward.

It is wholly unclear from both decisions how the Claimant’s risk will now be addressed. I accept the Claimant’s submission that in reality, the only realistic means of assessing the ongoing risk was through oral evidence at an oral hearing when that evidence could be considered in detail and analysed. Given the Claimant’s failure to manage treatment since the last hearing, I accept the Claimant’s submission that the treatment options available to the Claimant are now unclear.

In addition, further factors indicative of fairness in holding an oral hearing were the comments made by the community offender manager and the prison offender manager, namely the suggestion that there may be a positive outcome if the Claimant was rereferred to the Fens unit, and the potential impact of an updated psychological assessment. There appears to have been an assumption by the parole board that the Claimant’s psychological situation was static, despite the evidence presented to them of change to the formulations for the diagnosis of psychological problems, particularly in circumstances where there appears to be ongoing ambiguity about the Claimant’s IQ level following observations of professionals.

Further, I accept the Claimant’s submission that if treatment at the Fens unit is not possible at present, no other treatment option has been suggested and his route to rehabilitation may be considered to be non-existent. In those circumstances, those factors gave a clear indication that fairness required an oral hearing to enable the Claimant to understand why he is not suitable for treatment which may reduce his risk to the public thus increasing the likely prospect of a successful application for parole.

It appears that the Defendant in this case has focused on the likely outcome of any oral hearing and has thus applied the wrong test. The Claimant had identified various issues which, in my judgment, justified an oral hearing. Those issues were not peripheral. The Claimant wished to challenge or examine further evidence relating to his psychological position and indeed sought a further psychological assessment. The Claimant wanted to explore treatment options and why the previous treatment pathway was not successful. The reasons for refusing an oral hearing did not deal with why those identified issues did not establish that fairness required an oral hearing.

Despite the fact that the Claimant is 14 years post-tariff, there is no indication that the Claimant’s wish to take part in an oral hearing was considered. I accept the Claimant’s submission that Article 5(4) of the European Convention on Human Rights was engaged and that the holding of an oral hearing would fulfil the Defendant’s obligations where such a hearing was required. I also accept that if the Defendant is found to have unlawfully failed to consider the Claimant’s case by way of oral hearing, it will also have violated the Claimant’s rights pursuant to Article 5(4) of the Convention.