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

Procedural fairness may require the Parole Board to hold an oral hearing even where there is no disputed issue of fact and no realistic prospect of immediate release. The governing question is whether an oral hearing may serve a useful purpose in achieving a just assessment of current risk. The Board must consider the value of oral persuasion and discussion, particularly where written assessments rely on historic material and the prisoner faces an indefinite impasse. Hard and fast rules are inappropriate. Although such cases will be rare, an oral hearing may be necessary where it could enable the Board and relevant professionals to assess the prisoner’s evidence directly or facilitate independent evidence capable of breaking the impasse.

The claimant was serving a life sentence for murder and had remained in custody for more than 33 years, although his tariff had expired. Following a paper review, the Parole Board concluded that he was unsuitable for release or transfer to open conditions. It refused his request for an oral hearing, relying on the absence of specific challenges to the dossier, legal argument or evidence showing why the case could not be decided on the papers.

The claimant sought judicial review, arguing that fairness required an oral hearing because the risk assessments relied substantially on historic material, he had provided detailed evidence of personal change, and the refusal perpetuated an impasse in which he could neither demonstrate reduced risk nor obtain an oral opportunity to do so. The central issue was whether, in these unusual circumstances, procedural fairness required an oral hearing.

1. The application succeeded. The refusal of an oral hearing was procedurally unfair in the particular circumstances of the case.
2. Crime (Sentences) Act 1997, section 28, required release only where the Parole Board directed release and was satisfied that detention was no longer necessary for public protection. The amended Parole Board Rules 2004 permitted a single member to make a provisional paper decision against release, after which the prisoner could request an oral panel.
3. Rule 12, as amended, was compatible with article 5(4) of the ECHR. An oral hearing was implicitly required where it would serve a useful purpose in permitting proper exploration of the prisoner’s case. Fairness was ultimately a question of law, assessed in the context of the material before the Board and its expert evaluation.
4. An oral hearing was plainly appropriate where there was a realistic prospect of release or open conditions and facts in issue might affect the outcome. However, those were not exhaustive categories. The Board had to remain flexible and consider the value of oral persuasion and discussion, including in an apparently straightforward case with no evidential conflict.
5. Here, the professional assessments relied substantially on historic assessments and the absence of evidence of reduced risk. The claimant’s detailed written evidence had been rejected as uncorroborated without adequate engagement. Given his lengthy detention, the continuing impasse, and the possibility that oral evidence or an independent psychologist could assist, an oral hearing might have real value in assessing current risk.
6. The decision dated 1 June 2010 was therefore quashed or set aside insofar as necessary, and the judicial review application succeeded.

not stated in the judgment.