AC-2025-BHM-000177 - [2025] EWHC 2551 (Admin)

This is a judicial review by a recalled determinate sentence prisoner of the Parole Board’s refusal to grant him an oral hearing to consider his release. There are many of these cases, where prisoners challenge the parole Board’s refusal of an oral hearing to consider release, whether from recall on a determinate sentence as with this Claimant, or a prisoner on an indeterminate sentence. The leading case is R(Osborn) v Parole Board [2014] AC 1115 (SC).

So far as I am aware, in the decade or so since Osborn, whilst the Court of Appeal has cited Osborn many times as a leading case on procedural fairness generally, there have been few Court of Appeal cases in the Parole Board oral hearing context. the closest example may be R(Hassett) & SSJ [2017] 1 WLR 4750, where the Court of Appeal considered the guidance in Osborn to the Parole Board did not apply to the Secretary of State when determining prisoner categorisation decisions. But as far as I know, there is no guidance from the Court of Appeal since Osborn on when fairness requires an oral hearing from the Parole Board itself.

That is probably because no further guidance has been needed after Osborn, which is now well-settled, as Foster J observed in R(Somers) v Parole Board [2023] EWHC 1160 (Admin) at [26]. First instance decisions generally turn on their own facts. However, from time to time, issues of possibly wider significance crop up. In this case, there are actually three such issues.

The first issue is the respective roles of the first and second decision-maker in the Parole Board’s two-stage paper consideration process for considering release and oral hearings. In Osborn at para.2(x) Lord Reed observed in relation to the then-practice:

“’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. [T]o 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”.

Two different views have been taken of this observation in Osborn. UTJ Markus QC in R(Stubbs) v Parole Board [2021] EWHC 601 (Admin) said it meant it would be wrong for a second-stage decision-maker simply to review the first-stage decision. However, HHJ Belcher in R(McKilligan) v Parole Board [2024] EWHC 336 (Admin) thought it prohibited a ‘results-led approach’. I will seek to resolve that question, which is obviously of wider importance.

The second issue is linked to HHJ Belcher’s point about a ‘results-led approach’ and arises from Lord Reed’s analysis in Osborn that one purpose of procedural fairness is to ensure an individual’s participation in a decision-making process about themselves, as he said at [2(iv)]:

“[T]he purpose of..an oral hearing is not only to assist…in..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”.

In most cases, the question is whether an oral hearing is required due to disputed factual allegations or complex risk assessments which require a detailed evaluation of risk. As I shall explain, this case did not do so. Indeed, there was no realistic prospect of an oral hearing directing the Claimant’s release. So, on a purely ‘results-led approach’ it plainly did not require an oral hearing. However, that then raises the question of whether and if so when procedural fairness may require an oral hearing purely to enable a prisoner’s participation.

The third question this case raises is the relationship in the prisoner oral hearing context of two closely-related concepts. First, Common-Law ‘pointlessness’ considered by the Supreme Court in a very different context in R(Pathan) v SSHD [2020] 1 WLR 4506. Second, s.31(2A)-(3F) Senior Courts Act 1981 (‘SCA’) which (subject to exceptions) require the High Court to refuse to grant relief for judicial review: ‘if it appears to be highly likely the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred’. This is the subject of recent authority in a different context of relevance here too.

I will consider these questions even though I have not had opposing argument from either the Defendant Parole Board, or the Ministry of Justice as Interested Party. That is common, as the the Parole Board does not appear as it is a judicial decision-maker; and whilst the Ministry of Justice as an Interested Party would have the right to appear, it often stays neutral. As it is common for these cases to be ‘one-sided’ with submissions only for the Claimant prisoner, inconsistencies in unreported first instance cases can creep in, such as the difference between R(Stubbs) and R(McKillgan), also each one-sided cases. Therefore, it may be helpful to try and resolve those. Therefore, I referred Mr Ridding to Pathan and other cases and he rose to the challenge commendably. I am grateful to him and his instructing solicitors for their assistance.