O'Connell, R (on the application of) v The Parole Board & Anor

Article 5(4) is engaged where a prisoner’s release during the second half of an extended sentence depends on a Parole Board decision. The relevant question is whether the safeguard against arbitrary detention has a practical function in the circumstances, rather than whether detention derives formally from the original sentence.

Article 5(4) and common-law fairness do not require an oral hearing in every risk-assessment case. The need for an oral hearing depends on the facts, including whether facts are disputed or the applicant’s motives or state of mind require examination. The Board should generally be predisposed towards an oral hearing, but no hearing was required where the written material made the outcome inevitable.

The claimant was serving an extended sentence under the Criminal Justice Act 2003. The Parole Board refused to direct his release under section 247 after assessing the continuing risk of serious harm to his wife.

He sought judicial review on four grounds: that Article 5(4) was engaged; that the Board lacked the necessary independence; that fairness and Article 5(4) required an oral hearing; and that the Secretary of State had directed the Board to apply an unlawful test. The independence issue had been determined in earlier proceedings. The court therefore considered the applicability of Article 5(4), the need for an oral hearing, and whether the statutory risk test required determination.

1. Article 5(4). Article 5(4) was engaged. Although detention during the second half of an extended sentence was connected with the original sentence, release depended on a fresh decision by the Parole Board. That decision was capable of being arbitrary unless controlled by an Article 5(4)-compliant mechanism. The issue was therefore determined by the practical purpose of Article 5(4), namely preventing arbitrary detention, rather than by a formal analysis of the sentencing order.
2. Oral hearing. There was no absolute rule requiring an oral hearing whenever risk to the public had to be assessed. The authorities identified features capable of making a review compliant with Article 5(4), but did not require a hearing in every case. The position was the same at common law. An oral hearing would generally be indicated where facts were disputed, or where the applicant’s motives or state of mind required examination. The Board should be predisposed towards holding one where fairness was in doubt.
3. On the facts, the absence of an oral hearing was not unlawful. The claimant’s written representations adequately stated his position. The decisive material showed that he intended to resume living with his wife, while she would not engage with the relevant officers or accept licence conditions. The Board could not realistically have reached a different conclusion after hearing him orally.
4. Statutory test. The claimant’s challenge to the test under section 247(3) was not a live issue because the Board had apparently applied the test for which he contended. The court declined to decide whether a different test might apply in another case, particularly since section 247(3) did not expressly refer back to section 229.
5. The claim under the grounds considered was rejected. Mr Justice Simon agreed with Lord Justice Latham.

The judgment states that the claim had previously been heard by a differently constituted court together with claims by three other claimants. That court determined the Parole Board’s independence and made declarations in those cases, and declared that the Board did not meet common-law independence requirements in this claimant’s case. The present court determined the remaining grounds.