R (West) v Parole Board

The House of Lords held that the Parole Board owes determinate sentence prisoners a common law duty to act with procedural fairness when deciding representations against recall of licence. That duty will, in many cases where the outcome could turn on disputed facts or where explanations or mitigation are put forward, require the Board to offer an oral hearing so the prisoner can be heard in person or by a representative. The Parole Board's paper-based review procedure, which in practice almost never provided oral hearings in such cases, breached that duty in the appellants' cases. The Board's failure to offer oral hearings also breached article 5(4) of the European Convention on Human Rights. The House rejected the submission that article 6's criminal limb applied; it left open whether the civil limb of article 6 applies generally but considered it unnecessary to decide that point in these cases.

This was a conjoined appeal by two determinate sentence prisoners (Smith and West) who had been recalled to custody after release on licence. Both challenged the Parole Board's refusal to direct immediate release after they made written representations against recall; neither had been offered an oral hearing by the Board. Each sought judicial review on grounds including breach of the common law duty of procedural fairness and breach of Convention rights under articles 5 and 6.

Background and procedural history:

• West: sentenced to three years (short-term prisoner) and released on licence; licence revoked and recalled on recommendation of the Parole Board; solicitors made written representations and requested an oral hearing; the Board considered the papers and rejected the representations; judicial review dismissed at first instance ([2002] EWHC (Admin) 769) and the Court of Appeal (majority) dismissed the appeal ([2002] EWCA Civ 1641).
• Smith: sentenced (long-term) and released on licence; recalled after positive drug tests and the Board reviewed written representations without an oral hearing and refused to direct release; application for judicial review dismissed by the Court of Appeal ([2003] EWCA Civ 1269).

Issues framed:

• What does the common law duty of procedural fairness require of the Parole Board when determinate sentence prisoners make representations against licence revocation?
• Whether article 5(1) and 5(4) of the European Convention apply to revocation and recall and, if so, whether the Board's procedure complied with article 5(4).
• Whether article 6 applied: (a) as the determination of a criminal charge; or (b) as the determination of civil rights and obligations.

Court reasoning and disposition:

• On common law fairness the Lords held there was no absolute rule requiring an oral hearing in every case but that fairness often requires one where primary facts are disputed, where explanations or mitigation are advanced, or where the Board's assessment would be assisted by hearing the prisoner or witnesses. A screening procedure should be used so that oral hearings are the norm where the case is likely to turn on contested material issues of fact.
• Article 5: the Lords treated recall as a matter within article 5(1) and held that review by the Parole Board will satisfy article 5(4) only if conducted with the procedural fairness the common law requires; the Board's failure to offer oral hearings in these appeals breached article 5(4).
• Article 6: the Lords rejected the argument that revocation decisions constituted the determination of a criminal charge because the Board's decision is protective rather than punitive; whether the civil limb applies was left undecided as it would not afford greater protection than the common law duty in the present appeals.

Relief: both appeals were allowed and declarations made that the Board breached its duty of procedural fairness and article 5(4) in both cases; costs and consequential orders were addressed by the court.

Appeal allowed. The House held that the Parole Board had breached its common law duty of procedural fairness by failing to offer an oral hearing to each appellant when they made representations against revocation of their licences; that failure also breached article 5(4) of the European Convention on Human Rights. The Board was not required to hold an oral hearing in every case but must offer one where fairness so requires (for example where disputed facts or explanations central to the outcome exist). The criminal limb of article 6 did not apply; the court did not decide finally whether the civil limb of article 6 is engaged but considered it unnecessary to decide that point for these appeals.

First-instance judicial review applications dismissed by Turner J ([2002] EWHC (Admin) 769). On appeal the Court of Appeal dismissed West's appeal ([2002] EWCA Civ 1641) and dismissed Smith's judicial review ([2003] EWCA Civ 1269). The House of Lords allowed both appeals ([2005] UKHL 1).