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

—(1) Where a panel is appointed under rule 5(1) to consider the release of a prisoner, thepanel must decide on the papers either that—

In order to comply with common law standards of procedural fairness, the board should hold an oralhearing before determining an application for release, or for a transfer to open conditions, whenever fairnessto the prisoner requires such a hearing in the light of the facts of the case and the importance of what isat stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rightsand Fundamental Freedoms, in circumstances where that article is engaged.

It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:

Where facts which appear to the board to be important are in dispute, or where a significantexplanation or mitigation is advanced which needs to be heard orally in order fairly to determine itscredibility. The board should guard against any tendency to underestimate the importance of issues of factwhich may be disputed or open to explanation or mitigation.

Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of themeans by which it should be managed and addressed. That is likely to be the position in cases where suchan assessment may depend upon the view formed by the board (including its members with expertise inpsychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioninghim in person, or where a psychological assessment produced by the Ministry of Justice is disputed ontenable grounds, or where the board may be materially assisted by hearing evidence, for example from apsychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likelyto fall into the first of these categories.

Where it is maintained on tenable grounds that a face to face encounter with the board, or thequestioning of those who have dealt with the prisoner, is necessary in order to enable him or hisrepresentatives to put their case effectively or to test the views of those who have dealt with him.

Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair fora “paper” decision made by a single member panel of the board to become final without allowing an oralhearing: for example, if the representations raise issues which place in serious question anything in thepaper decision which may in practice have a significant impact on the prisoner’s future management inprison or on future reviews.

In order to act fairly, the board should consider whether its independent assessment of risk, and of themeans by which it should be managed and addressed, may benefit from the closer examination which anoral hearing can provide.

The board should also bear in mind that the purpose of holding an oral hearing is not only to assistit in its decision-making, but also to reflect the prisoner’s legitimate interest in being able to participate ina decision with important implications for him, where he has something useful to contribute.

The question whether fairness requires a prisoner to be given an oral hearing is different from thequestion whether he has a particular likelihood of being released or transferred to open conditions, andcannot be answered by assessing that likelihood.

When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisonerhas been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariffindeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk isunacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.

The board must be, and appear to be, independent and impartial. It should not be predisposed tofavour the official account of events, or official assessments of risk, over the case advanced by the prisoner.

The board should guard against any temptation to refuse oral hearings as a means of saving time,trouble and expense.

The board’s decision, for the purposes of this guidance, is not confined to its determination of whetheror not to recommend the prisoner’s release or transfer to open conditions, but includes any other aspects ofits decision (such as comments or advice in relation to the prisoner’s treatment needs or the offendingbehaviour work which is required) which will in practice have a significant impact on his management inprison or on future reviews.

“Paper” decisions made by single member panels of the board are provisional. The right of the prisonerto request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holdingof an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or eventhat it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.

In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubtwhether to do so or not.

In any event, whether or not the Claimant makes an application to be released or states an intentionone way or the other the Defendant has a statutory duty to make a decision as to suitability for releasenecessarily therefore Article 5(4) is engaged. The likelihood of a release is not relevant when assessingwhether or not to hold an oral hearing. Osborn indicates [112] a pre-disposition towards an oral hearingfor indeterminate post-tariff prisoners.

The need for a hearing to satisfy the entitlement of a prisoner to a fair consideration of his position isthe stronger in the case of a post-tariff lifer and the omission to consider this aspect properly or at all is aserious omission by the Board.

The Supreme Court in Osborn indicated for a range of prisoners that in cases of doubt a hearingshould be afforded. I do not detect in the reasoning of the Board here any doubt in this case.However, inmy judgment the reasoning in Osborn which adverts particularly to the position of the post-tariff lifer, istantamount to articulating a presumption in favour of a hearing in such cases. Put otherwise, a goodreason for not holding a hearing should be present when a refusal is made in the case of a post-tariff lifer,for whom the issues of insight, behaviour and risk (at least) are central to progress, and are almostcertainly best examined and understood in the open forum of an oral hearing. The obligation to considerthe prisoner's position falls upon the Board, it is not dependent upon the prisoner, and it does, as thecourt in Osborn recognised, engage Article 5(4).

The Decision is clearly focused on the possible outcome of an oral hearing. The Decision refers tothere being no merit in an oral hearing "..at this stage..", as once the 1:1 work has been concluded anupdated Psychological Risk Assessment will be required to determine if further interventions are required,or if there is support for progression. The Member, therefore, concluded "…that directing an oral hearingat this time would be premature". In my judgment this approach fails to address the correct issue asidentified in Osborn (per Lord Reed at [29(x)]. The Claimant did not have to demonstrate that thepaper decision was wrong, or even that it may have been wrong. The issue is whether an oral hearing wasappropriate. By considering, indeed focusing on the potential outcome of an oral hearing, in my judgmentthe Decision fails to specifically address the relevant issues set out in Osborn.

38…In my judgment no good reason has been put forward by the Parole Board for not holding a hearingin the Claimant's case. The Decision has focused on the outcome and in doing so has failed to addressthe central fundamental question outlined in Osborn , namely whether fairness called for an oral hearing,and has failed to consider which elements of the Claimant's case might or might not call for an oralhearing, by reference to the guidance give in Osborn.”

The Claimant also referred me to R (on the application of David Clarke) v (1) Parole Board for England and Wales and (2) the Secretary of State for Justice [2025] EWHC 190 (Admin) - a recent decision of Fordham J. In Clarke, Fordham J also had to decide the single issue of whether fairness required an oral hearing in that case. He reviewed the guidance in Osborn. He noted that:

“10.

If the governing principle, for when fairness requires an oral hearing, entails the prisoner identifying a realistic prospect of their succeeding after the oral hearing with the “outcome” of a release-direction… or transfer-recommendation,,, the Claimant could not succeed.”

The judge then noted that that outcome-utility approach to oral hearings had been rejected by the Supreme Court in Osborn as unduly narrow. What fairness required involved a two dimensional shift. The first dimension of that was to consider the practical scope and effect of what the board does in a parole review, which is not limited to the outcome. In addition, the board is obliged to provide full reasons for any decision including detailing any continuing areas of risk that need to be addressed. It may be difficult in conducting that exercise to avoid commenting on specific treatment needs or offending behaviour work required.

The second dimension concerns the true ethos of fairness and engages participatory justice, noting at paragraph 14 that “the broader value and rationale was about procedural justice for the person affected, whether or not it would improve the quality of the decision-making”. The board cannot use “a realistic prospect of success” as a precondition for granting an oral hearing.