K, R (on the application of) v Parole Board

Procedural fairness in parole decisions is context-sensitive. Where the applicant is a child, fairness may require more than consideration of written material. The child must be offered appropriate adult assistance to understand the dossier and formulate representations. The Parole Board must ensure that such assistance has been provided or offered. It must also inform the applicant that an oral hearing may be possible and address whether one is desirable. A routine paper-based approach is inadequate where the applicant’s age and circumstances make effective participation difficult.

K, aged 14, challenged the Parole Board’s refusal to direct his release on parole under an extended sentence imposed pursuant to Criminal Justice Act 2003, section 228. The Board had considered reports concerning his progress, rehabilitation and risk from gang-related influences, but K had received little assistance in understanding the dossier or preparing his representations.

He contended that the procedure was unfair because he was not given appropriate adult assistance, was not told that an oral hearing might be available, and was not interviewed by a Board member despite the application form indicating that such a visit would occur. The court granted permission and heard the matter substantively.

1. Claim allowed and decision quashed. The Board’s refusal of parole could not stand. The application was remitted for reconsideration by a freshly constituted panel.
2. Section 239(3) of the Criminal Justice Act 2003 left the question of an oral hearing or interview to the Board’s discretion. That discretion had to be exercised consistently with the common law duty of procedural fairness. The principles stated in R v Home Secretary, ex p. Doody [1994] AC 531 required fairness to be assessed in the statutory and factual context.
3. The Board had failed to ensure an effective opportunity for K to make representations. He was a child of 14, had received minimal guidance on the dossier, and had prepared his written representations without assistance. In such circumstances, fairness required that appropriate adult assistance at least be offered. The obligation to provide or arrange that assistance fell on the custodial authorities, but the Board had to ensure that it had been provided or offered and know if it had been declined.
4. The Board’s application form suggested that a member would visit K and did not explain that an oral hearing might be possible. No visit occurred and no explanation was given. Following R (West & ors.) v Parole Board [2005] UKHL 1, fairness did not require an oral hearing in every case, but the applicant should be told that one might be possible and the issue should be addressed in light of the case.
5. The court rejected the Board’s characterisation of the application as routine. The heightened care required when authorities deal with children was supported by R (SP) v Home Secretary [2004] EWHC 1418 (Admin) and [2004] EWCA Civ 1750. The common law was also informed by Article 12 of the UN Convention on the Rights of the Child and the Beijing Rules, as discussed in Dyer v Watson [2004] UKPC D1.
6. The court rejected the separate contention that the Board had failed to consider K’s written representations. The remaining grounds, including irrationality and reliance on welfare considerations, did not require determination.

The judgment itself was a first-instance judicial review decision. Permission was granted by Mr Kenneth Parker QC, sitting as a Deputy Judge, and the substantive application was then determined by the High Court (Administrative Court). No prior judgment citation is stated.