Ismailaj v The Parole Board of England & Wales & Anor

Whether procedural fairness requires an oral hearing before the Parole Board depends on the circumstances of the particular case. The central question is whether an oral procedure would assist materially in resolving the issues before the Board. A hearing is especially indicated where there is a material issue of fact capable of affecting the outcome, but it is unnecessary where the Board can fairly decide the application from the written material and an oral hearing would realistically make no difference.

The Administrative Court must exercise its own judgment on fairness, while respecting the Board’s expertise in assessing risk and deciding what procedure is needed. The weight given to relevant considerations is for the Board. In this case, the conflicting assessments showed a developing attitude rather than a material factual dispute requiring oral examination, and the application for judicial review was dismissed.

The claimant was serving a determinate sentence for human trafficking and was eligible for discretionary early release on licence. The Parole Board considered his first application on the papers and declined to recommend release, principally because his acceptance of responsibility, victim empathy and changed attitude appeared recent and insufficiently sustained.

The claimant sought judicial review, arguing that procedural fairness required an oral hearing and that the Board had failed to take account of material considerations, including rehabilitative work, risk management arrangements and differing probation assessments. Permission had been granted only in relation to the alleged unfairness in refusing an oral hearing. The central issues were whether an oral hearing was necessary and whether the Board’s decision was undermined by failure to consider relevant matters.

1. Oral hearing. The application was dismissed. Procedural fairness is a question for the court’s own primary judgment, rather than a Wednesbury review. The relevant inquiry is whether an oral hearing would have utility in resolving the issues before the Parole Board, having regard to the material already available, the Board’s expertise and its assessment of what was needed to determine whether release would put the public at risk.
2. A material issue of fact capable of affecting the outcome will generally favour an oral hearing. Here, the reports of Ms Browne and Ms Gaines were made approximately five months apart and were not necessarily contradictory. They showed a recent development in the claimant’s attitude. The Board was entitled to seek clearer evidence that the change was genuine and sustained. An oral hearing would not realistically have altered the outcome.
3. The same reasoning applied to the absence of a prior interview. The Board was entitled to assess the written evidence and did not need to call the claimant or the report writers merely because their assessments differed.
4. Material considerations. The Administrative Court has an ultimate supervisory jurisdiction, but must approach challenges to the Board’s assessment with circumspection. Whether a matter is material is often a matter of judgment for the Board, and the weight given to a relevant consideration is pre-eminently for it. The court must not substitute its own assessment of risk.
5. The Board had not treated the claimant’s non-attendance on the Enhanced Thinking Skills course as a material adverse factor, or had given it little weight. The case was materially different from R (Falconer) v SSJ [2009] EWHC 2341 (Admin), where a prisoner was denied the means of demonstrating progress while that progress was demanded as a condition of release. The Board had also considered the circumstances of the claimant’s proposed return to Albania, his vocational achievements and other positive matters. Its conclusion that the recent change in attitude did not yet reduce risk sufficiently was open to it.
6. The arguments based on different release regimes and alleged unequal treatment were unnecessary to the decision and were left undecided. The application for judicial review was therefore dismissed.