AC-2025-CDF-000035 - [2025] EWHC 2099 (Admin)

Mr Withers’ helpful skeleton argument includes the case law which has grappled with the issue of fairness in deciding whether or not to hold an oral hearing in this context In what he calls the key authority, the Supreme Court in Osborn, Booth & Reilly [2013] UKSC 61, referred to by the panel member, set out a helpful summary of the applicable principles as to whether fairness requires an oral hearing by the board. Lord Reed, with whom the other justices agreed, said this at [2].

“2.

It may be helpful to summarise at the outset the conclusions which I have reached.

i)

In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms , in circumstances where that article is engaged.

ii)

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

a)

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

b)

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

c)

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

d)

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

iii)

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

iv)

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

v)

The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.

vi)

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

vii)

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

viii)

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

ix)

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

x)

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

xi)

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

xii)

The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness.

xiii)

A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty.

The Supreme Court, in dealing with the case of Mr Booth, who was serving a life sentence for attempted murder and had a history of psychiatric illness, and who was post tariff, said this at [99]:

“The points put forward in support of his so-called “appeal” raised significant issues on which the input of his psychiatrist might have been helpful and which merited the depth of consideration which only an oral hearing could provide. In that regard, it is relevant that the appellant had spent so long in custody post-tariff and that the board had been asked to advise on continuing areas of risk that needed to be addressed.”

There have been several cases in which the court, applying Osborn, has quashed as unfair a refusal by the board to hold an oral hearing, where mental health issues of the prisoner were relevant, including R(Bennett) v Parole Board [2019] EWHC 2746 (Admin) and R (Lawrence) v Parole Board [2020] EWHC 3774 (Admin). In the latter case, Stacey J at [24] said:

“Where, as here, there may be issues of mental health problems fairness usually requires the grant of an oral hearing (see for example Hussain v UK [1996] 22 EHRR 1 ). The extent to which the presentation of mental health issues on 16 January 2020 was down to drug abuse is best explored at an oral hearing and are important issues and facts that require clarification. Mr Lawrence's account of what happened that day has not yet been sought.”

In R (Somers) v Parole Board [2023] EWHC 1160 (Admin), Forster J said at [55]:

“Put otherwise, a good reason 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 almost certainly best examined and understood in the open forum of an oral hearing.”