Osborn & Anor v The Parole Board

Procedural fairness does not require the Parole Board to hold an oral hearing in every review of continued detention. The need for a hearing depends on the circumstances and on whether oral evidence, explanation, questioning or persuasion could realistically assist a just assessment of risk.

The Board may assess, from the material before it, whether an oral hearing could affect its decision. It must not impose a requirement that the prisoner prove a likely successful outcome. Where there is doubt whether a hearing may assist, fairness favours one. The reviewing court determines fairness as a question of law, while assessing it against the Board’s legitimate factual appraisal and expertise.

These linked proceedings concerned refusals by the Parole Board to hold oral hearings before deciding whether continued detention was necessary for public protection.

Mr Osborn, a determinate-sentence prisoner recalled on the day of his release, appealed from Langstaff J’s refusal of judicial review. He challenged the Board’s refusal of an oral hearing, relying on disputed allegations about his conduct and intentions on release and on his mental health.

Mr Booth, serving a life sentence, challenged on judicial review the Board’s paper decision not to direct release or recommend open conditions. Langstaff J had refused permission, but Maurice Kay LJ granted permission to appeal. Mr Booth relied on his recent work with a psychiatrist, alleged factual errors and the complexity of his case.

The common issue was when procedural fairness requires an oral Parole Board hearing and how the court should review a refusal.

1. Disposition. The court dismissed Mr Osborn’s appeal and dismissed Mr Booth’s application for judicial review. Lord Justice Moses and Lord Justice Sedley agreed with Lord Justice Carnwath.

2. Following R (Smith) v Parole Board (No 2) [2005] 1 WLR 350, procedural fairness does not make an oral hearing automatic. A hearing may be required where material facts are challenged, explanations for alleged breaches require examination, professional assessments need probing, or oral engagement may otherwise assist the risk assessment. If the Board is in doubt whether the matter can fairly be determined on paper, it should be predisposed towards an oral hearing.

3. Article 5(4) was not more demanding on the facts. Hussain v UK (1996) 22 EHRR 1 stated a general, fact-sensitive principle. It did not require an oral hearing whenever dangerousness turns in part on personality or maturity. Waite v UK (2003) 36 EHRR 54 prevented ex post facto speculation that a hearing could not have mattered, but did not prevent the Board from making its own prospective assessment whether a hearing could realistically affect the decision. Flexibility was essential; a rigid ‘realistic prospect’ criterion risked overlooking the value of oral persuasion.

4. Fairness is ultimately a question of law for the court, not a Wednesbury review of the procedural decision. The court must nevertheless judge fairness in the circumstances which the Board legitimately identified and evaluated, including its expert appraisal of the existing material and risk. The Board should record briefly the material which led it to its procedural decision.

5. In Mr Osborn’s case, the judge had understated the significance of the first solicitors’ letter, which raised factual issues relevant to his apparent attitude to licence conditions. Those matters did not, however, determine the refusal of release. The absence of current psychiatric information, the need for a full assessment before re-release, and the very high risk of serious harm if he reoffended gave ample reason for continued detention. An oral hearing could not realistically affect that position at that stage.

6. In Mr Booth’s case, the reports unanimously opposed release or open conditions. His recent one-to-one psychiatric work, the alleged factual errors and differences over future custodial work did not create a dispute about the immediate need for continued detention. The Board could fairly conclude that an oral hearing would make no practical difference for the time being.

• Court of Appeal (Civil Division): Dismissed Mr Osborn’s appeal and dismissed Mr Booth’s judicial-review application: [2010] EWCA Civ 1409.
• High Court (Manchester Civil Justice Centre): Langstaff J refused Mr Osborn’s application for judicial review and refused Mr Booth permission to apply for judicial review. Maurice Kay LJ later granted Mr Booth permission in the Court of Appeal.