Osborn & Anor v The Parole Board

The Court of Appeal confirmed that the Parole Board is not required to hold an oral hearing in every case of recall or indeterminate sentence review; an oral hearing is required where there is a material dispute of fact or where live evidence or the presence of the prisoner may materially assist the Board's assessment of risk, but where the Board can fairly conclude on the papers that an oral hearing could not realistically affect its decision no hearing is required.

These linked appeals challenge Parole Board refusals to grant oral hearings: one (Osborn) following recall after release on licence on a determinate sentence; the other (Booth) a review of an indeterminate (lifelong) prisoner. Both appeals raised whether procedural fairness required an oral hearing before the Board made its decision on continued detention. The High Court (Langstaff J) refused relief in each case; the appeals reached the Court of Appeal which considered domestic and Strasbourg authorities on when oral hearings are necessary, the role of psychiatric evidence, and the standard by which courts review fairness of procedural decisions.

Held (majority)

1. Overall disposition: Both applications for judicial review were dismissed; the Court of Appeal found no unfairness in the Parole Board's decisions refusing oral hearings in these particular cases (Osborn dismissed; Booth dismissed).
2. Criteria for the Parole Board: The Board is not obliged to hold an oral hearing in every case. An oral hearing will normally be required where there is a material dispute of fact that is relevant to risk, where credibility, veracity or the prisoner’s mental state requires assessment in person, or where live evidence is likely to make a realistic difference to the outcome. Where the Board is in doubt it should be predisposed in favour of an oral hearing, but it may properly decline one if fairly satisfied on the material available that an oral hearing could not realistically affect its decision ([paras 27–36]).
3. Mental health and expert assessment: Where a prisoner raises an issue about current mental state, the appropriate first step (when credibility or diagnosis is in issue) is investigation and expert assessment; an oral hearing is not required merely because the prisoner claims a mental illness until relevant expert evidence has been obtained ([paras 13, 35]).
4. Standard of judicial review of procedural fairness: Whether a procedure was fair is a question of law for the court. The court should judge fairness in the context of the circumstances identified and evaluated by the decision-maker, giving due weight to the Board's appraisal and expertise, but not applying a Wednesbury-only standard. The court asks whether the decision was fair in light of the matters the Board identified and assessed ([paras 39–41, 53–61]).
5. Application to Osborn: The Court accepted there were some factual disputes of relevance, and criticised elements of the claimant’s representations, but concluded the Board legitimately relied on the lack of information about current mental health and the high assessed risk of serious harm; those considerations meant an oral hearing would not realistically alter the decision on re-release. The judge’s conclusion was correct and the appeal was dismissed ([paras 43–48]).
6. Application to Booth: Although complex and unfortunate, the unanimous professional view in the dossier that the prisoner was unsuitable for release or open conditions meant the Board could legitimately conclude there was no realistic prospect that an oral hearing would change the outcome; the appeal was dismissed ([paras 49–51]).
7. Practical guidance: The Court observed that Parole Board guidance (policy/practice guidance) should be accessible and may require revision to reflect these principles; flexibility is desirable because no bright-line rule can govern all cases where an oral hearing is required ([paras 24–25, 54–56]).
8. Orders: Both applications for judicial review are dismissed (operative order recorded in the judgment).

• High Court (Administrative Court) – Langstaff J: permission refused in Booth; substantive judicial review hearing and refusal in Osborn (reported in the judgment as the decisions under appeal) (see para references throughout).
• Court of Appeal (Civil Division) – This judgment: both appeals dismissed and requests for judicial review refused.