Regina v. Parole Board (Respondents) ex parte Smith (FC) (Appellant) Regina v. Parole Board (Respondents) ex parte West (FC) (Appellant) (Conjoined Appeals)

A determinate-sentence prisoner who challenges revocation of a licence has no automatic right to an oral hearing. The Parole Board must, however, examine the circumstances of the individual case. An oral hearing is ordinarily required where material facts are disputed, explanations or mitigation need examination, or oral evidence and questioning may materially assist the assessment of risk.

The Board is an independent decision-maker concerned with public risk, not punishment. Its review must satisfy common-law procedural fairness to comply with article 5(4) of the European Convention on Human Rights. Recall does not determine a criminal charge for article 6 because it implements the protective element of the original sentence and imposes no fresh punishment.

The conjoined appeals concerned determinate-sentence prisoners recalled after release on licence under the Criminal Justice Act 1991. Justin West disputed or explained several alleged licence breaches and requested an oral hearing. The Parole Board rejected his written representations without hearing him. Turner J dismissed his judicial review claim in [2002] EWHC (Admin) 769, and the Court of Appeal dismissed his appeal by a majority in [2002] EWCA Civ 1641, [2003] 1 WLR 705.

Trevor Smith admitted using cocaine but relied on the drug culture in his hostels, his attempts to overcome addiction and the potential assistance of psychiatric evidence. He did not expressly request an oral hearing. The Board considered his written representations and declined to direct release. The Court of Appeal dismissed his judicial review application in [2003] EWCA Civ 1269, [2004] 1 WLR 421.

The central question was when common-law procedural fairness, and consequently article 5(4), requires the Parole Board to offer an oral hearing before finally determining representations against recall.

1. Disposition. The House unanimously allowed both appeals. Lord Bingham delivered the leading speech. Lord Walker agreed fully with it; Lord Slynn agreed fully on the common-law issue; Lord Hope reached substantially the same conclusions; and Lord Carswell agreed with Lord Bingham and Lord Hope. The Board had breached its duty of procedural fairness by failing to offer either appellant an oral hearing. A declaration was made in each case that the failure also breached article 5(4) of the European Convention on Human Rights.

2. Common-law fairness. Per Lord Bingham, fairness does not require an oral hearing whenever a determinate-sentence prisoner resists recall. Its requirements are flexible and depend on the statutory setting, the public interest and the prisoner's conditional liberty. The inquiry extends beyond formally disputed primary facts. Agreed facts may require explanation or mitigation, may lose significance when considered with new material, or may need to be tested through questioning. The Board must therefore consider whether exposure to the prisoner, witnesses or representatives would materially assist its assessment of risk.

   Lord Hope added that the Board should screen cases for challenges to the truth or accuracy of allegations and for explanations which were previously overlooked or disputed. Where such matters must be resolved before deciding suitability for release, an oral hearing should be the norm. Lord Slynn considered that the Board should be predisposed towards a hearing whenever it doubts whether the matter can fairly be decided on paper.

3. Application. Per Lord Bingham, West's explanations could not fairly be rejected on the papers. Smith was entitled to explain the hostel environment, his efforts to overcome addiction and the potential psychiatric evidence. The possibility that Smith would have remained detained after a fair process did not cure the procedural defect.

4. Articles 5 and 6. Per Lord Bingham, with majority support, the original determinate sentence satisfied article 5(1) in relation to both initial detention and later recall because conditional release and possible recall formed part of the composite sentence. Article 5(4) nevertheless required review by a court capable of deciding whether circumstances legally justified further detention and whether public protection required it. The Board possessed those powers, but its procedure had to embody common-law fairness.

   Recall did not determine a criminal charge under article 6. The distinguishing feature of such a charge is exposure to punishment. Recall serves public protection and imposes no fresh punishment. Lord Bingham left the civil limb of article 6 unresolved because it would add nothing material in these cases. Lord Slynn and Lord Hope would have held that the civil limb did not govern the Board's recall proceedings.

5. Orders. The Board was ordered to pay Smith's costs in the House and below. The parties were invited to make written submissions on West's costs.

1. House of Lords: In Regina v Parole Board, ex parte Smith and West [2005] UKHL 1, the House unanimously allowed both appeals and declared that the Board's failure to offer oral hearings breached common-law procedural fairness and article 5(4).
2. Court of Appeal—Smith: The court dismissed the substantive judicial review application in [2003] EWCA Civ 1269, [2004] 1 WLR 421. The House reversed that result.
3. Court of Appeal—West: The court, by a majority, dismissed West's appeal in [2002] EWCA Civ 1641, [2003] 1 WLR 705. The House reversed that result.
4. High Court—West: Turner J dismissed the judicial review claim in [2002] EWHC (Admin) 769.