Yusuf, R (on the application of) v The Parole Board

When the Parole Board considers transferring a lifer whose minimum term has not expired to open conditions, procedural fairness does not impose an automatic oral hearing or an exceptionality test. The question depends on the particular circumstances. Relevant considerations include the importance of what is at stake, whether oral evidence or questioning could assist the decision-maker, whether concerns can be addressed effectively in writing, and the need for even-handedness in assessing risks both of premature transfer and of unnecessary continued detention. The Board’s policy required an oral hearing where oral evidence was needed and additionally where a paper review would otherwise recommend transfer. It did not require a hearing in every pre-tariff case. The claim was dismissed because the reports were clear and an oral hearing would not materially assist the assessment.

The claimant was serving a life sentence for murder. Her minimum term had not expired when the Secretary of State asked the Parole Board to advise on her suitability for transfer from closed to open conditions. A single judicial member considered the written materials and advised against transfer. The claimant sought judicial review, challenging the absence of an oral hearing rather than the substantive advice.

The issues were the proper interpretation of the Board’s policy on oral hearings and whether procedural fairness required the claimant and the authors of reports to be heard orally, given the importance of transfer to open conditions and the concerns about risk, mental health and her continuing denial of responsibility.

1. Claim dismissed. Neither the Board’s policy nor procedural fairness required an oral hearing in the claimant’s case.
2. The Board’s policy preserved the existing requirement for an oral hearing where the circumstances required oral evidence. It added a further requirement where, on the papers, the member would otherwise recommend transfer to open conditions. It did not make an oral hearing automatic in every pre-tariff case or whenever there was any possibility of transfer.
3. The court, rather than the Board, had to decide what procedural fairness required. Some, but not undue, weight could be given to the Board’s specialist view. The court adopted the guidance in R (on the application of (1) Smith and (2) West) v The Parole Board [2005] 1 WLR 350 as the best guide. The relevant considerations included the value of seeing and hearing the prisoner and those responsible for the prisoner’s management, the ability to address concerns which might emerge only at an oral hearing, and the importance of what was at stake.
4. There was no hard and fast rule and it was not necessary to show exceptional circumstances. The Board’s policy also informed the fairness assessment. Its protective purpose operated both ways: a hearing might be needed to guard against transferring a prisoner whose risk was too high, but fairness and the public interest might also require proper consideration of transfer where risk was negligible. This required real consideration of an oral hearing in every case, but not a hearing in every case.
5. On the facts, the claimant’s presentation at a hearing would not reliably assist in assessing the risk arising from the known violent offence. Her motives and state of mind could not realistically be explored when her denial had prevented the psychologists from exploring them. The reports were clear, and questioning their authors would add nothing material. The member had read the relevant risk assessments and understood the substance of the psychological evidence. An oral hearing was therefore unnecessary.
6. The misinformation given by the Board about its policy did not itself establish entitlement to a hearing, but it neutralised any argument based on the claimant’s failure to request one. The need for an oral hearing should always be considered, whether or not the prisoner requests it.