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

Ordinary determinate prisoners are generally entitled to be released on licence having served the custodial period of their sentence (usually 40% or 50%) under s.246 Criminal Justice Act 2003 (‘CJA’). However, under s.254 CJA they are liable to be recalled by the Ministry of Justice before their sentence expires. Under s.255B, those serving a sentence under four years (now: in October 2024 it was under 12 months) are generally eligible for automatic release after 28 days (14 days if 12 months or less), but under s.255C others (including the Claimant) not released within 28 days must be referred to the Parole Board to consider release under s.255C. Under s.255C(4), the Parole Board must not direct release of a prisoner unless it is ‘satisfied it is not necessary for the protection of the public that the prisoner should remain in prison’. That is a function for the Parole Board under s.239 CJA which empowers the making of procedural rules, currently the Parole Board Rules 2019 (as amended in 2024):

“18 Representations by and evidence of the parties

(1)

A party who wishes to make representations to the Board must serve them on the Board and the other party….(b) at the time of referral if the case relates to [recall]

19 Consideration on the papers

(1)

Where a panel is…consider[ing] the release of a prisoner, the panel must decide on the papers either that: (a) the prisoner is suitable for release; (b) the prisoner is unsuitable for release, or (c) the case should be directed to an oral hearing….

(5)

Any decision made under paragraph (1)(a) which is not eligible for reconsideration under rule 28 is final.

(6)

Any decision made under paragraph (1)(b) is provisional….

20 Procedure after a provisional decision on the papers

(1)

Where a panel… has made a decision that a prisoner is unsuitable for release under rule 19(1)(b), the prisoner may apply in writing for a panel at an oral hearing…

(2)

A prisoner who makes an application under paragraph (1) must serve the application, together with reasons for making an application, on the Board and the Secretary of State, within 28 days of the decision….being sent

(5)

If an application is served in accordance with paragraph (2), the decision about whether the case should be determined at an oral hearing must be taken by a member of the Board who (a) is a duty member, and (b) was not part of the constituted panel appointed under rule 5(1) who made the provisional decision.

(6)

If the decision taken under paragraph (5) is that the case should not be determined at an oral hearing, a provisional decision under rule 19(1)(b)—(a) remains provisional if it is eligible for reconsideration under rule 28 and becomes final if no application for reconsideration is received within the period specified by that rule or, (b) becomes final if it is not eligible for reconsideration under rule.28.

(7)

Where the decision…is that the case should not be determined at an oral hearing, that decision must (a) be provided to the parties by the Board within 14 days of the application….under paragraph (2); and (b) include the reasons for that decision….

21 Decision on the papers after a direction for an oral hearing

(1)…[W]here … a panel have directed that a case should be determined at an oral hearing under rule 19(1)(c) or 20(5), a panel…may direct that the case should be decided on the papers if an oral hearing is no longer necessary (a) in the interests of justice; (b) to effectively manage the case; or (c) such..reason as [thought appropriate]

28 Reconsideration of Decisions

(1)

Subject to para.(2), where a decision has been made under rule 19(1)(a) or (b)… a party may apply to the Board for the case to be reconsidered on the grounds that the decision (za) contains an error of law; (a) is irrational; or (b) is procedurally unfair.

(2)

Decisions are eligible for reconsideration only where the prisoner is serving: (a) an indeterminate sentence; (b) an extended sentence; (c) a determinate sentence subject to initial release by the Board… or (d) a serious terrorism sentence.”

28A Setting Aside Final Decisions

(1)

The Board may set aside a final decision made under rule 19(1)(a) or (b)…

(3)

A final decision may be set aside under paragraph (1) by a decision maker if (a) it is in the interests of justice to do so; and (b) one or more of the conditions in paragraph (4) are satisfied.

(4)

The conditions are: (a) the decision maker is satisfied that a direction given by the Board for, or a decision made by it not to direct, the release of a prisoner would not have been given or made but for an error of law or fact…”

So considering this statutory scheme of Rules 19 and 20, which is referred to as ‘Member Case Assessment’ (‘MCA’), a recalled prisoner can make representations immediately under Rule 18, the first decision about release or oral hearing under Rule 19 is either ‘provisional’, or ‘final’ (or later become ‘final’, so I call it a ‘Rule 19 decision’. The second decision under Rule 20 is not explicitly called ‘final’ or ‘provisional’ and l call it a ‘Rule 20 decision’:

This is a marked change from the Parole Board’s practice for recalled determinate sentence prisoners at the time of Osborn. Lord Reed explained at [14]-[15] it restricted the earlier practice to grant an oral hearing whenever a recalled determinate prisoner requested it following R(West) v Parole Board [2005] 1 WLR 350 (HL). The pre-Osborn process was:

“Where the prisoner asks for an oral hearing, the panel should: Consider whether it is possible to decide the issues and release on the papers; Otherwise, send the case for an oral hearing . . . Where a prisoner submits representations challenging his or her recall the panel should: Consider whether it is possible to decide the issues and release on the papers; or Refuse the representations . . . or Send the case to an oral hearing. This should only be done when the panel is unable to decide the issues on the papers and concludes that they can only be determined after hearing oral evidence.” (Original emphasis).

Lord Reed criticised the impact of this procedure on fairness in Osborn at [92]-[94]:

“92 It is also important that the administrative procedure adopted by the board should be well adapted to ensuring that an oral hearing is held when such a hearing is necessary. In that regard, it has to be said that the procedural rules in force at the material time, and the analogous rules currently in force, are liable to give rise to a number of problems…

93 First, the rule requiring a single member panel either to decide that the case should receive further consideration by an oral panel, or to make a provisional decision that the prisoner is unsuitable for release or for a transfer to open conditions, should not be understood as meaning that an oral hearing is appropriate only if the single member panel forms the provisional view that the prisoner is suitable for release or transfer.

I will come to the second, third and fourth problems Lord Reed discussed at [94]-[96] later.

Lord Reed also made observations more generally on procedural fairness in relation to oral hearings, summarised in Osborn at [2], which I shall quote in full:

“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 [’HRA’] to act compatibly with article 5(4) [ECHR]…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…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. 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…

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….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)...It will be prudent..to allow an oral hearing if it is in doubt whether to do so or not.

xii)

The common law duty to act fairly…in this context, is influenced by the requirements of [Art.5(4) ECHR]. Compliance with the common law duty should result in compliance also with requirements of [Art.5(4) on] 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.”

In Osborn at [2(i)], Lord Reed made clear that an oral hearing should be directed ‘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’ (which I will refer to by the shorthand of ‘fairness requires an oral hearing’). The situations he listed at [2(ii)] were clearly not exhaustive hermetically-sealed categories (indeed ‘Categories A-D’ in the prison estate have a different meaning). Sometimes, fairness will require an oral hearing due to a mixture of different elements from (a)-(d), which I shall call ‘examples of’ or ‘factors’ where fairness requires an oral hearing, but ultimately that is the test. Indeed, as I will explain, this case has elements of (c) and (d), but whether that means overall that fairness requires an oral hearing is a separate point.

Against that context, I turn to my own analysis of the three questions I set out at the start: