Roose v The Parole Board & Anor

Article 5(4) and procedural fairness do not require an oral hearing in every case concerning a prisoner’s release or continued detention. The question is fact-sensitive. The Parole Board must decide whether an oral hearing would materially improve its understanding of the issues or the accuracy of its risk assessment, having regard to the importance of what is at stake. Relevant considerations include disputed facts, the need to examine the prisoner’s state of mind or explanations, the value of questioning witnesses or responsible officers, and whether oral advocacy could address concerns arising from the papers. The prisoner must request a hearing, but does not bear a legal burden of justifying it. In this case, the significance of a proposed personality-disorder assessment and its possible effect on future reviews made an oral hearing necessary.

The claimant was serving a discretionary life sentence and had remained imprisoned for many years beyond expiry of his minimum term. On review, a single member of the Parole Board provisionally decided that he was unsuitable for release or transfer to open conditions. The decision relied partly on a tentative suggestion that he be assessed for a Dangerous and Severe Personality Disorder programme.

The claimant requested an oral hearing. The Board treated the request as an appeal on the merits and refused it. The claim challenged both the compatibility of the amended Parole Board Rules with Article 5(4) and the refusal of an oral hearing in the claimant’s individual case. The central issues were whether the amended rules unlawfully removed an entitlement to an oral hearing and whether fairness required a hearing on the facts.

1. Compatibility of the amended rules. The amended rules did not breach Article 5(4). That provision does not impose an absolute requirement for an oral hearing whenever the Board considers release or continued detention. The need for a hearing depends on the issues requiring determination. The amended rules left the Board able to convene a hearing whenever Article 5(4) or procedural fairness required one.
2. Applicable approach. It was for the court to decide what procedural fairness required, while giving some, but not undue, weight to the view of the specialist Board. A hearing may be required where the case involves disputed facts, explanations or mitigation, assessment of the prisoner’s character, personality, maturity or reliability, or a need to question the prisoner, witnesses or officers involved in his management. The Board must consider whether an oral process would make its decision more informed or its risk assessment more accurate. The importance of what is at stake is also material.
3. Application. The proposed Dangerous and Severe Personality Disorder assessment was raised for the first time in a tentative report. The subsequent recommendation appeared to have been treated as more definite than it was. The issue could affect the claimant’s prison placement, treatment, security classification and future reviews, and it was relevant to whether he was ready for open conditions. Oral questioning and submissions could therefore have materially affected the Board’s assessment. Procedural fairness and Article 5(4) required an oral hearing.
4. Remedy. The decision dated 12 May 2009 was quashed. The court declared that an oral hearing was required and ordered that it take place at the time it would have taken place had the request been granted then. No order for the claimant’s costs was provisionally made on the substantive challenge.