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

Whether a Parole Board should hold an oral hearing is a question of fairness, assessed by the court’s own primary judgment rather than by the Wednesbury standard. An oral hearing is not required merely because oral questioning might assist or allow a prisoner to repeat matters already contained in the papers. The decisive question is whether live evidence or oral persuasion could realistically make a difference to the issue on which the Board’s decision rests. Where the Board’s reasoning accepts, or assumes in the prisoner’s favour, a disputed matter but relies instead on the need for further risk-reduction work arising from poor consequential thinking skills, an oral hearing may fairly be refused.

The claimant, serving a determinate sentence for violent offences, had been released on licence and recalled after breaching a condition prohibiting entry to licensed premises without prior approval. The Parole Board later declined to direct his release on paper, relying principally on the need for further work addressing cognitive deficits and consequential thinking skills. It refused his request for an oral hearing, although it recommended a further paper review because the potential benefit of re-release had not been expressly addressed. Permission for judicial review had been granted. The central issue was whether fairness required live evidence to assess the claimant’s risk.

1. Application dismissed. The court exercised its own primary judgment on the fairness of refusing an oral hearing. The issue was appellate in character and was not governed by Wednesbury unreasonableness or the existence of a broad range of discretion.
2. The principles in R(Osborn & Booth) v The Parole Board [2010] EWCA Civ 1409 and R(Smith & West) v The Parole Board [2005] 1 WLR 350 were accepted. Fairness may require an oral hearing where factual issues, explanations for alleged breaches, or professional assessments require probing. Conversely, no oral hearing is necessary where the decision-maker can fairly conclude that it could realistically make no difference.
3. The court construed the Board’s decision as accepting that the claimant might have turned a corner and might be motivated to lead a law-abiding life. That was not the factual issue determining the refusal of release. The substance of the decision was that the circumstances of the recall evidenced continuing poor consequential thinking skills and that further work should be undertaken in closed conditions.
4. The breach of a licence condition imposed to minimise public risk was relevant to the claimant’s ability to comply with licence requirements. Consequential thinking skills were therefore relevant to risk and the likelihood of future offending. The claimant’s oral evidence, and further oral emphasis by his Offender Manager, would not have altered the Board’s underlying assessment.
5. Since the decision did not turn on the claimant’s credibility or on whether he had genuinely changed, live evidence was unnecessary. The refusal of an oral hearing was fair and the judicial review application failed.

This was a first-instance judicial review application. Permission was granted by His Honour Judge Shaun Spencer QC on 3 January 2012. The substantive application was dismissed by the High Court (Administrative Court).