Osborn v The Parole Board

The Parole Board must hold an oral hearing whenever procedural fairness requires one, having regard to the facts, the importance of the interests at stake and the prisoner's ability to participate effectively. Important disputed facts, tenable explanations, the need for an independent assessment of risk and matters affecting future prison management may require oral examination.

A hearing cannot be refused merely because release or transfer appears unlikely. A single-member paper decision is provisional, and a request for a hearing is not an appeal against a presumptively correct decision. Courts determine for themselves whether the procedure was fair. Compliance with these common law standards should also secure compliance with article 5(4). Damages for a procedural breach will not normally be awarded without a consequent deprivation of liberty.

These conjoined appeals concerned three prisoners who had been refused oral hearings by the Parole Board. Osborn was a determinate-sentence prisoner recalled after release on licence. Booth and Reilly were indeterminate-sentence prisoners who had served their minimum terms. Each maintained that disputed facts, explanations, expert evidence or other matters required oral consideration.

Osborn's judicial review claim was dismissed by the High Court in [2010] EWHC 580 (Admin). Booth was refused permission to seek judicial review in [2010] EWHC 1335 (Admin). Their appeals were dismissed together in [2010] EWCA Civ 1409. Reilly succeeded before the High Court of Northern Ireland in [2010] NIQB 46 and obtained certiorari in [2010] NIQB 56, but the Court of Appeal in Northern Ireland reversed that decision in [2011] NICA 6.

The central issue was when common law procedural fairness, informed by article 5(4) of the Convention, requires the Board to hold an oral hearing. Reilly also sought damages under section 8 of the Human Rights Act 1998.

1. Disposition. The appeals were allowed unanimously. Lord Reed delivered the judgment, with which Lord Neuberger, Lady Hale, Lord Kerr and Lord Clarke agreed. The Court declared in each case that the Board had breached its duty of procedural fairness by failing to offer an oral hearing and had consequently breached article 5(4).

2. The court itself must decide whether the procedure adopted was fair. It does not merely review the Board's assessment of fairness on rationality grounds. Procedural fairness serves several purposes: improving the quality of decisions, respecting the affected person's dignity and legitimate interest in participation, and promoting the rule of law.

3. Following R (West) v Parole Board [2005] UKHL 1, the Board must hold an oral hearing whenever fairness requires it in light of the facts and the importance of what is at stake. Relevant circumstances include disputed important facts; significant explanations or mitigation requiring oral assessment; a need to see or question the prisoner or hear expert evidence when independently assessing risk; and a tenable contention that oral participation or questioning is required to present the case effectively. The circumstances are not exhaustive. The Board should permit a hearing when in doubt.

4. The likelihood of release or transfer is a different question from whether a fair hearing is required. Requiring a realistic prospect of success as a precondition is circular and unfair. The Board must remain independent and impartial, must not prefer official accounts or risk assessments, and must not refuse hearings to save time or expense. A single-member paper decision under rules 11 and 12 of the Parole Board Rules 2004 is provisional. A request for an oral hearing is not an appeal, and the prisoner need only establish that a hearing is appropriate. A hearing will ordinarily be required where allowing the paper decision to become final would unfairly affect future management or reviews.

5. Osborn's case involved important disputed facts and explanations concerning his licence, recall and assessed risk. Booth's long post-tariff detention and the potentially useful evidence of his psychiatrist required oral consideration. Reilly disputed or explained adjudications and drug-test results that had influenced his risk assessment. Common law fairness therefore required hearings in all three cases. Those standards also satisfied article 5(4). Applying R (Faulkner) v Secretary of State for Justice [2013] UKSC 23, Reilly received no damages because the breach had caused no deprivation of liberty; the declaration was sufficient just satisfaction.

1. United Kingdom Supreme Court: The court allowed all three appeals and declared that the Board's failure to offer oral hearings breached common law procedural fairness and article 5(4): [2013] UKSC 61.
2. Court of Appeal of England and Wales: The appeals of Osborn and Booth were dismissed: [2010] EWCA Civ 1409; [2011] UKHRR 35.
3. Court of Appeal in Northern Ireland: The Board's appeal in Reilly's case was allowed, reversing the finding that an oral hearing was required: [2011] NICA 6.
4. High Court of England and Wales: Osborn's judicial review claim was dismissed in [2010] EWHC 580 (Admin). Booth was refused permission to apply for judicial review in [2010] EWHC 1335 (Admin).
5. High Court of Northern Ireland: Reilly established breaches of common law fairness and article 5(4) in [2010] NIQB 46. The Board's decision was quashed, but damages were refused, in [2010] NIQB 56.