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

The first wider question stems from Lord Reed’s observation in Osborn at [2(x)] that:

“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.”

As I said, two different views have been taken about this observation. Mr Ridding relied on a comment by HHJ Belcher in R(McKilligan), another a ‘one-sided’ case involving a refusal to grant an oral hearing to a post-tariff Life prisoner, whose Counsel submitted it had been wrong to ignore that status. HHJ Belcher agreed, but then added at [36]-[37]:

“I would go further and infer his position as a post-tariff lifer has not been considered, because this Decision has been taken on a results-led approach….[It] is clearly focused on the possible outcome of an oral hearing. [It] refers to there being no merit in an oral hearing ‘at this stage’, as once the 1:1 work has been concluded an updated 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 hearing at this time would be premature’. In my judgment this approach fails to address the correct issue as identified in Osborn at [29(x)]. The Claimant did not have to demonstrate that the paper decision was wrong, or even that it may have been wrong. The issue is whether an oral hearing was appropriate. By considering, indeed focusing on the potential outcome of an oral hearing, in my judgment the Decision fails to specifically address the relevant issues…in Osborn.”

Whilst I respectfully agree with HHJ Belcher that Lord Reed in Osborn cautioned against a purely ‘results-led approach’ (e.g. at [2(iv), (v) and (ix)]), as I shall discuss later, Lord Reed should not be misunderstood as saying it is irrelevant whether an oral hearing would contribute towards the result of whether to release. However, I do not believe that is the point Lord Reed was making in Osborn at [2(x)], which slightly summarised an observation he went on to make at [94]: i.e. the second problem with pre-Osborn practice noted earlier:

“[I]t is important to understand the provisional nature of a decision made by the single member panel the prisoner is unsuitable for release. The right conferred on the prisoner, following that decision, to request an oral hearing is not a right of appeal. The prisoner does not have to demonstrate that the decision was (or may have been) wrong, what he has to persuade the board is simply that an oral hearing is appropriate”

Therefore, Lord Reed was not talking about the requirements of procedural fairness as such: he was interpreting then Parole-Board policy about its paper decision-making process. Notably, in dealing with the three cases before the Court in Osborn at [98]-[100], Lord Reed criticised references to an ‘appeal’ against the paper decision in two of them. But, as I shall explain, because of Osborn, processes have now changed and are found in the 2019 Rules.

However, in R(Stubbs), a 2019 Rules case, they were not cited. Instead, Counsel relied on Osborn at [2(x))] to submit (in my terminology) that it was unfair for a Rule 20 decision to review whether a Rule 19 decision was ‘wrong’. UTJ Markus QC agreed at [22]-[23]:

“22.

[T]he Board applied the wrong test in determining the request for an oral hearing. The decision-maker found that the paper decision had clearly laid out the facts, had correctly identified the review and conclusion and had found the Claimant had made limited progress in relevant respects. The decision-maker stated ‘legal representations were considered at the time of the MCA review’ (the paper decision)…[which] considered those submissions’ continu[ing] ‘The legal representations do not raise any issues which cause the Duty Member to put the paper decision into serious question’.

23.

It is apparent from the above that the decision-maker wrongly approached the request as turning on whether the paper decision was correct. This was contrary to the principle at para.2(x) of…Osborn that the prisoner does not need to demonstrate that the paper decision, which is provisional, was wrong; the question is whether an oral hearing is appropriate. The decision did not address that key question. Instead, it approached its task as being one of review of or appeal against the paper decision.”

I respectfully agree that is consistent with Osborn at [2(x)]. The question is whether it is consistent with Rules 19 and 20 Parole Rules 2019, which differ from practice before Osborn.

That matters, as whilst procedural fairness is an objective matter for the Court (Osborn at [65]), what it requires depends on the statutory procedures in question, as Lord Mustill said in another prisoner rights case, R v Home Secretary Exp Doody [1994] AC 531 (HL) at 560:

“(1)

where an Act…confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The[y.. are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision and this is to be taken into account in all its aspects… (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests, fairness will very often require that he is informed of the gist of the case which he has to answer.”

Therefore, as Lord Mustill said in Doody at (4): an essential feature of the context relevant to what fairness demands is the legislation creating the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. That issue is essentially one of statutory interpretation. The modern approach was set out by Lord Hodge in R(O) v SSHD [2023] AC 255 (SC) at [29]-[31] and [41] (citing Doody). The Court is ‘seeking the meaning of the words that Parliament used’: an objective assessment of what was intended. So, the primary source for their meaning is the language of the legislation itself. Key statutory words or phrases must be read in the setting of the section, surrounding sections and the scheme of the legislation generally. The Court can consider ‘external aids’ to interpretation like Explanatory Notes or Memoranda to legislation which accompany it through Parliament, or legislative or case-law history, as well as interpretative assumptions and presumptions. However, they do not displace the meaning of clear language that does not produce absurdity.

Nevertheless, here I will start with the ‘external aids’ to Rules 19 and 20 Parole Rules 2019:

This context is highly relevant to the interpretation of the language of Rules 19 and 20. They do not supply any test or threshold for when a case is suitable for an oral hearing (unlike the pre-Osborn process which focussed on factors such as disputed facts and risk assessment). So, the decisions under Rule 19(1) and Rule 20(5) is a matter of apparently open discretion. Therefore, the presumption is that they will be exercised fairly (Doody), namely consistently with Osborn. This is consistent with the scheme of Rules 19 and 20 in the setting of the rest of the 2019 Rules. In short, they do not codify Osborn, but are intended to be decisions taken consistently with it. Three further observations can be made about this statutory scheme:

Therefore, the language of Rules 19 and 20, read in their statutory context, suggests that a Rule 19(1)(c) decision to refuse an oral hearing is effectively ‘provisional’, subject to the opportunity to apply within 28 days under Rule 20(2) for an oral hearing. If no such application is made, or it is refused under Rule 20(6), the Rule 19 decision becomes final. In short, Rule 20 is a ‘second opinion on an oral hearing’, not an appeal or reconsideration of the Rule 19 decision. That appears to be a legislative choice to adopt what Lord Reed in Osborn at [2(x)], whose wording can be slightly adapted to reflect the new statutory scheme:

“’Paper’ decisions [under Rule 19] by single member[s]… are provisional. The right of the prisoner [under Rule 20] 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 the [Rule 19] 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.”

What is ‘appropriate’ has not been spelt-out in Rules 19 and 20, because it had already been spelt-out in Osborn at [2] generally, which is consistent with the MCA system enshrined in 2016. Therefore, I agree with the analysis of UTJ Markus QC in R(Stubbs) at [22]-[23]. That was a clear case where the Rule 20 decision went wrong in saying: ‘The legal representations do not raise any issues which cause the Duty Member to put the paper decision into serious question’. That said, of course it is permissible for the Rule 20 decision to reach the same view as the Rule 19 decision, provided the Rule 20 decision is the decision-maker’s own judgment on the Osbornprinciples, rather than reviewing the correctnessof the Rule 19 decision.

Indeed, the duty of a Rule 20 decision-maker to reach their own judgment on whether fairness requires an oral hearing on the Osborn principles is itself an aspect of procedural fairness written-into the statutory scheme.. As explained in Doody principles (5) and (6), fairness often requires a duty to allow representations, so the individual must first know the gist of the case against them. Since a Rule 19 decision only ‘provisionally’ refuses release, or an oral hearing, a prisoner will know that gist, so can make representations under Rule 20 hoping to secure an oral hearing. As Lord Kerr and Lady Black explained in R(Pathan) at [137]-[141], this duty to inform and allow representations is a procedural duty, even if it produces a substantive benefit. But the benefit itself with Rule 20 decisions is itself procedural anyway: an oral hearing. Conversely, if the Rule 20 decision-maker does not reach their own judgment about an oral hearing and only reviews whether the Rule 19 decision was wrong, that unfairly limits the prisoner’s Rule 20 opportunity to make representations generally. It risks limiting them to the correctness of the Rule 19 decision. But Rule 20 representations may raise a matter important to whether fairness requires an oral hearing of which the Rule 19 decision-maker was unaware (an issue here), or that has happened since the Rule 19 decision. That does not make the Rule 19 decision ‘wrong’ - and if that were the test, the Rule 20 decision-maker would be ignoring relevant considerations simply because the Rule 19 decision-maker did not know about them. Moreover, treating a Rule 20 application as an ‘appeal’ entails wrongly assuming the Rule 19 decision is ‘presumptively correct’ as Lord Reed said in Osborn at [95]:

“The unfairness which results from the board’s treatment of the request for an oral hearing as an appeal is illustrated by the case of the appellant Booth, in which the [second-stage] assessor identified the critical question as being ‘whether the grounds of the appeal are justified and if an oral hearing would make any material difference to the paper decision’. The request for an oral hearing was thus decided on the basis that the earlier decision was presumptively correct. This is to put the cart before the horse. If fairness requires an oral hearing, then a decision arrived at without such a hearing is unfair and cannot stand. The question whether an oral hearing is required cannot…be decided on..a presumption that a decision taken without such a hearing is correct.”

All, that said, Rule 20 also enables concerns about the Rule 19 decision to be raised, which may themselves justify an oral hearing, as Lord Reed said in Osborn at [2(ii)(d)]:

“Where, in the light of the representations by…the prisoner, it would be unfair for a [Rule 19] ‘paper’ decision…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”

But even this does not make Rule 20 an ‘appeal’ against a Rule 19 decision, as it may be correct, but fairness still require an oral hearing for participation, as I discuss later.

Standing back, the Rule 19 and 20 decisions on procedural fairness chime with the fact procedural fairness is an objective matter for the Court, as Lord Reed said in Osborn at [65]:

“[D]icta…. suggesting that the question whether procedural fairness requires an oral hearing is a matter of judgment for the Board, reviewable by the Court only on Wednesbury grounds [are] not correct. The court must determine for itself whether a fair procedure was followed…. Its function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required.”

Therefore, there are consequently (up to) three stages of decision where the decision-maker must reach their own judgment whether fairness requires an oral hearing of the Parole Board: the Rule 19 decision, the Rule 20 decision and the Court itself on Judicial Review.

Unlike the Ministry of Justice, the Parole Board exercises judicial functions: R(Hassett) at [51]. Under Rule 20(7), if the Rule 20 decision refuses an oral hearing, it must give reasons within 14 days. This makes the Rule 19 decision final only challengeable under Rule 28 (not here), Rule 28A, or by Judicial Review. So Rule 20(7) reasons must meet Lord Brown’s test in South Bucks DC v Porter (No 2) [2004] WLR 1953 (HL) at [36]:

“The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the principal important controversial issues, disclosing how any issue of law or fact was resolved…The[y] must not give rise to a substantial doubt as to whether the decision-maker erred in law for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds.”

Of course, the Rule 20 Decision must give adequate reasons by this standard on all matters which it addresses. However, those will include requiring the Rule 20 decision not to leave ‘substantial doubt’ whether the decision-maker exercised their own judgment whether fairness required an oral hearing. That said, provided the Rule 20 decision is the decision-maker’s own judgment on that issue, there may well be considerable overlap between the reasoning of the Rule 19 and 20 decisions about it. I examine later whether Decision 2 discharged that duty.