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

One reason why there may well be ‘considerable overlap’ between the Rule 19 and 20 decisions on whether procedural fairness requires an oral hearing is because the criteria for whether it does under the Osborn principles will be the same (save perhaps where it arises out of the Rule 19 hearing as envisaged in Osborn at [2(ii)] factor (d) as discussed). The long-standing examples of where fairness requires an oral hearing, reflected in pre-Osborn guidance following R(West) in 2005, were summarised by Lord Reed in Osborn at [2(ii)(a) and (b)]:

“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….

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…of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment…is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist….”

Most cases about challenges to refusal of an oral hearing (including this one) involve arguments about factors (a) and/or (b), for example, three High Court cases Mr Ridding cited, although they are all very different from the Claimant’s case:

Yet Mr Ridding sought to draw parallels between these and the Claimant’s case, that he argued involved factors in Osborn [2(ii)] (a) (‘contested important facts’) and (b) (‘complex risk assessment’), referring to the Claimant’s mental health. I accept if a prisoner’s mental health is complex and there is a contested psychological evidence or assessment about it, that can fall within factor (b) where fairness requires an oral hearing. In Osborn at [105]-[109], Lord Reed noted the European Court of Human Rights in Hussain v UK [1996] 22 EHRR 1 considering Art.5(4) ECHR (i.e. someone deprived of their liberty by detention has the right to have its legality - and if unlawful release - decided speedily by a Court such as the Parole Board) said:

“59.

[With] deprivation of liberty, where questions arise which involve…assessment of the applicant’s character or mental state, it has held that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing.

60.

[I]n a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding on his dangerousness, article 5.4 requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.”

Hussain concerned an indeterminate prisoner, but in R(Whiston) v SSJ [2015] 1 AC 176 (SC) it was held Art.5(4) did not apply to determinate prisoners like the Claimant even recalled on licence. But as Lord Reed stressed in Osborn at [54]-[63], common law procedural fairness is not necessarily co-extensive with the ECHR. Osborn factor (b) can mean fairness requires an oral hearing for determinate prisoners, as in R(Bennett) v Parole Board [2019] ACD 139, where a prisoner with mental health issues on a 26-month sentence was recalled on licence for breach of hostel rules. HHJ Walden-Smith held fairness required an oral hearing due to (a) and (b): contested breaches and risk assessment given there was no psychological report. However, just because mental health is relevant to the decision whether to release, that does not mean factors (a) (contested important facts) or (b) (complex risk assessment) mean that fairness requires an oral hearing. As I shall explain, unlike in R(Bennett), in this case an oral hearing is not required due to factors (a) or (b). In my judgment, the real question in this case is whether it falls within Osborn [2(ii)] factors (c) and/or (d), which I partially repeat:

“(c)

Where it is maintained on tenable grounds that a face-to-face encounter with the board ….is necessary...to enable him or his representatives to put their case effectively

d)

Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a ‘paper’ decision… to become final without..an oral hearing… “

In Osborn, (d) relates to [96], which was Lord Reed’s third concern with current practice:

“[S]ince the effect of the refusal of an oral hearing is that the provisional decision becomes final, it follows an oral hearing should be granted in any case where it would be unfair to the prisoner for that to happen. For example, if the representations made in support of the prisoner’s request for an oral hearing raise issues which place in question anything in the provisional decision which may in practice have a significant impact on the prisoner’s future management in prison or on his future reviews, such as reports of poor behaviour or recommendations that particular courses should be undertaken to reduce risk, it will usually follow an oral hearing should be allowed for that reason alone, even if there is no doubt that the prisoner should remain in custody or closed conditions.”

Rule 20 is not an ‘appeal’, but factor (d) shows fairness may require an oral hearing to correct disputed matters in a prisoner’s Rule 19 decision that may have a significant effect on his progression. (Minor corrections are more a matter for the Data Protection Act 2018).

In Osborn, Lord Reed linked (c) with [2(iv)] at [82] and I quote it with [83], [84], [88]-[89]:

“82..[T]he 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. An oral hearing should therefore be allowed 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 to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him….

83 When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional: a factor on which Lord Bingham placed emphasis in West [where Lord Bingham said at [30]:

“[A] short-term prisoner who has served half his sentence…[has] a statutory right to be free: a conditional right, but none the less a right, breach of which gives an enforceable right to redress..” [Lord Reed continued in Osborn:

84 It also has to be borne in mind that the issues which are considered by the board are not in practice confined to the question whether the prisoner should or should not be released or transferred. As I have explained, the statutory directions given to the board require it to consider numerous matters. The board’s findings in relation to these matters may in practice affect the prisoner’s future progress in prison, for example in relation to the courses which he is required to undertake and his future reviews…..

88 Whether a prisoner’s right to a fair hearing requires the holding of an oral hearing does not depend on his establishing that his application for release or transfer stands any particular chance of success: that approach would not allow for the possibility that an oral hearing may be necessary in order for the prisoner to have a fair opportunity of establishing his prospects of success, and thus involves circular reasoning.

89 The point can be illustrated by the example of a prisoner who is unable to participate effectively in a written procedure due to learning difficulties. To decide whether he should be allowed an oral hearing on the basis of his prospects of success as they appeared on the basis of the official dossier and his written representations, if any, would plainly be unfair. The problem with reliance on the prospects of success, as they appear from the written material, as the touchstone of what fairness requires is not however confined to prisoners who are manifestly disadvantaged by a written procedure….”

Given references to ‘participation’ in [82] and [89], I call factor (c) ‘effective participation’, although it may overlap with factor (d) in cases where a disadvantage of the rule 19 decision being on paper is that it could not enable the ‘effective participation’ fairness required. As I will discuss, Mr Ridding’s main argument is that the Claimant’s case is an example of that.

Therefore, Lord Reed in Osborn was entirely clear that fairness may require an oral hearing to enable such ‘effective participation’ irrespective of the prospects of success of release. This was partly because an oral hearing may be relevant to future progress in prison ([84]), but also because some prisoners require an oral hearing to participate effectively in decision-making about themselves irrespective of its outcome, such as a prisoner with learning difficulties. To that extent, Lord Reed rejected a ‘purely results-led approach’, to adapt HHJ Belcher’s phrase in RMcKilligan). However, that does not mean he considered the result or potential outcome as irrelevant: factors (a) and (b) were relevant in all three cases decided in Osborn and indeed in R(McKilligan) itself. Instead, Lord Reed was saying whether fairness required an oral hearing did not only depend on whether it could affect the result e.g. release.

Just as with Lord Reed’s example in Osborn at [89] of a prisoner with learning difficulties who fairly needs an oral hearing to participate effectively, similarly, a prisoner with mental health conditions may in fairness require an oral hearing to participate effectively. That is analytically different from – but clearly may overlap with - whether their mental health gives rise to ‘contested important facts’: factor (a); or ‘complex risk assessment’: factor (b). For example, in R(EG) v Parole Board [2020] EWHC 1457 (Ad) it was accepted an oral hearing was required for a prisoner recalled from licence who lacked mental capacity to litigate or participate in Parole Board proceedings about re-release and May J held the Parole Rules 2019 allowed appointment of Litigation Friends. However, the facts need not be that unusual.

After all, procedural fairness in any context is not just focussed on the quality of decision-making in the result, as Lord Reed explained in Osborn at [69], citing the famous example by Fortescue J in R v Chancellor of Cambridge, Ex p Bentley (1723) 2 Ld Raym 1334, when he observed in Genesis, even Omniscient God gave Adam a hearing before expelling him and Eve from Eden. As Lord Reed added in Osborn at [68] and [70]:

“68.

[J]ustice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken….

70..[R]esearch has established the importance attached by prisoners to a process of risk assessment which provides for their contribution…..[and] reveals the frustration, anger and despair felt by prisoners who perceive the board’s procedures as unfair and the impact of those feelings on their motivation and respect for authority …Potential implications for…rehabilitation, and ultimately for public safety, are evident.”

These observations, while directed at prisoners seeking oral hearings generally, are in my view particularly apposite for prisoners whose mental health may be significantly affected by denial of an oral hearing; and/or those who cannot effectively participate without one. Nevertheless, none of this means whether an oral hearing will make a difference to the result is irrelevant. On the contrary it is very important. But it is not the only relevant consideration.

Having said that, as Lord Reed said in Osborn at [82], an oral hearing to enable ‘effective participation’ need only be held where, there are ‘tenable grounds’ to maintain that an oral hearing is ‘necessary’ for effective participation by a prisoner, such as his example at [89] of a prisoner with learning difficulties unable to participate effectively without an oral hearing. So, it is not enough for a prisoner to assert he needs an oral hearing on untenable grounds. As Lord Bingham said in R(West) at [35] (partly quoted in Osborn at [75]), procedural fairness does not require an oral hearing in every case where a determinate prisoner objects to recall and does not decline an oral hearing. I stress that fairness must require oral hearing.

Therefore, in short, I accept that procedural fairness may require an oral hearing only to enable participation of the prisoner, even if there are no realistic prospects of the Board ordering a prisoner’s release. One important example, squarely within the contemplation of Lord Reed in Osborn, is a prisoner who requires an oral hearing to participate effectively, e.g. due to cognitive impairment or mental health, even if those issues do not give rise to complex risk assessment or disputed facts otherwise requiring an oral hearing. I will consider whether that applies to the Claimant’s case later, after I resolve the last of the three wider issues: the role of ‘pointlessness’ and s.31(2A) SCA in oral hearings cases.