M, R (on the application of) v The Parole Board and Secretary of State for Justice

A Parole Board must act fairly, but procedural fairness is shaped by the statutory and administrative context. A prisoner must ordinarily receive adverse material which may influence the decision and a fair opportunity to answer it. Where a panel’s particular concern does not arise from the evidential material, fairness requires the prisoner to be given an opportunity to address it. There is no general rule requiring a panel to identify every concern, or to warn a prisoner that an answer appears unsatisfactory or that an issue is decisive. The question is whether the issue was sufficiently apparent from the material before the panel and the questions asked at the hearing.

The claimant, a mandatory life prisoner serving three life sentences, sought judicial review of the Parole Board’s decision not to recommend his transfer to open conditions. The Board considered that risks connected with his intimate and interpersonal relationships, including his relationship with a woman outside prison, required further investigation and had not been adequately addressed.

The claimant argued that the decision relied on concerns, factual assumptions and reasons which had not been raised during the hearing, depriving him of a fair opportunity to respond. The central issues were whether the concerns were supported by material in the dossier, whether the claimant and his advisers should have been aware of them, and whether fairness required the panel to identify them expressly.

1. Claim dismissed. The Parole Board’s statutory function involved an informed and experienced assessment of risk. It also owed a public law duty to act fairly. The requirements of fairness depended on the legal and administrative context and the interests at stake, including public safety and the prisoner’s conditional freedom.
2. Fairness would usually require disclosure of adverse material which the panel might take into account, together with an opportunity to answer it by evidence and argument. An oral hearing could enable the panel to question the prisoner and others, raise troubling matters, and resolve disputed facts. The effectiveness of representations could depend on the prisoner understanding the considerations which might lead to an adverse decision.
3. The court accepted, with some qualification, that if a panel had a particular concern which did not arise from the evidential material, it should give the prisoner an opportunity to address it. However, no general rule required a panel to articulate all its concerns or to identify an issue as relevant or key.
4. The dossier contained longstanding material identifying interpersonal and intimate relationships as potential risk factors. Earlier reports had also raised concerns about the claimant’s relationships with women befriended in prison, his counsellor or adviser role, and the possibility of difficulties arising during stress. The issue was therefore live and should have alerted the claimant and his advisers.
5. The panel’s questions at the hearing conveyed that it was interested in the claimant’s relationships, particularly with the two women identified in the decision. The claimant had an opportunity to give evidence but gave limited responses. The panel was not required to warn him that his answers might be regarded as unsatisfactory. Issues of fact concerning the relationships did not convert the hearing into an unfair process.
6. The court did not decide whether the decision could have been upheld notwithstanding a breach of fairness. That alternative issue did not arise because no breach was established.

The judgment describes an earlier judicial review concerning the claimant, decided by the Administrative Court in [2009] EWHC 768 (Admin). No appellate history for the present claim is stated.