R (Osborn) v Parole Board

The Supreme Court held that the Parole Board was required, by common law standards of procedural fairness and by article 5(4) of the European Convention interpreted through the Human Rights Act 1998, to hold an oral hearing whenever fairness to the prisoner requires one in the light of the facts of the case and the importance of what is at stake. The court explained that it is impossible to define exhaustively when an oral hearing is necessary, but identified typical circumstances: disputes on facts central to risk assessment, significant explanations or mitigation that require oral testing, cases where an assessment of risk depends on seeing or questioning the prisoner or expert witnesses, and where representations raise issues that would make a provisional paper decision unfair if allowed to become final.

The court emphasised that a single-member "paper" provisional decision under the rules is provisional, not final, and that a prisoner requesting an oral hearing need not show that the paper decision was (or likely to be) wrong, but only that an oral hearing is appropriate. The board must be and appear to be independent and impartial and should not be predisposed to the official account. Where the board refused oral hearings in the appellants' cases it breached the duty of procedural fairness and thereby failed to act compatibly with article 5(4).

The appeals concerned three prisoners (Osborn, Booth and Reilly) who were refused oral hearings by single-member "paper" panels of the Parole Board. Each applicant challenged the refusal by way of judicial review, contending that procedural fairness and article 5(4) required an oral hearing before the board made a final determination affecting their liberty or future management.

Nature of the applications: judicial review of decisions refusing to order oral hearings; claimants sought review/quashing of decisions and declarations of breach of procedural fairness and Convention rights; one applicant sought damages under section 8 of the Human Rights Act 1998.

Procedural history: the cases came to the Supreme Court on appeal from the Court of Appeal (England & Wales) ([2010] EWCA Civ 1409) and the Court of Appeal in Northern Ireland ([2011] NICA 6), after earlier High Court/Northern Ireland Queen's Bench decisions (eg [2010] EWHC 580 (Admin); [2010] EWHC 1335 (Admin); [2010] NIQB 46 and [2010] NIQB 56).

Issues framed by the court: (i) the content of the common law duty of procedural fairness in the context of Parole Board reviews; (ii) the relationship between the common law duty and article 5(4) of the Convention; (iii) the circumstances in which an oral hearing is required before the board; and (iv) whether any breach should give rise to damages under section 8.

Reasoning and holdings: the court began from domestic common law principles of fairness and explained that Convention jurisprudence is relevant but subsidiary. It reaffirmed and extended guidance from R (West) v Parole Board about when oral hearings are required and gave detailed factors indicating when fairness will normally require an oral hearing (eg disputed facts central to risk, need to assess characteristics by seeing/questioning the prisoner, disputed psychological assessments, or where paper decisions would have substantial practical impact on future management). The court rejected the approach of treating a request for an oral hearing as an "appeal" requiring the prisoner to demonstrate a realistic prospect of success. Instead a prisoner need only show that an oral hearing is appropriate. Applying that guidance, the court found that each appellant's case warranted an oral hearing, that the board had acted unfairly in each case, and that article 5(4) was accordingly engaged and breached. On remedies, the court allowed the appeals, quashed the decisions and made declarations of breach; in Reilly's case it declined a damages award because he could not show any deprivation of liberty resulting from the breach and held that a declaration was sufficient just satisfaction.

Wider implications: the judgment provides comprehensive guidance to the Parole Board on the procedural test for ordering oral hearings, emphasising the prisoner’s participatory interest, the board’s independence, and that cost-saving considerations cannot justify denying hearings where fairness requires them.

Appeals allowed. The Supreme Court held that the Parole Board breached its common law duty of procedural fairness, and accordingly article 5(4) of the Convention, by refusing oral hearings in the appellants' cases. The court gave guidance that oral hearings must be held whenever fairness to the prisoner requires it in light of the facts and what is at stake (including disputed important facts, need to assess risk by seeing/questioning the prisoner or experts, or where paper decisions would significantly affect future management). The board must treat single-member paper decisions as provisional and not require prisoners to show a realistic prospect of success before ordering an oral hearing. Declarations of breach were made; no award of damages was appropriate in the Reilly case given absence of consequent deprivation of liberty.

Appeals to the Supreme Court from the Court of Appeal (England & Wales) [2010] EWCA Civ 1409 and from the Court of Appeal in Northern Ireland [2011] NICA 6. Earlier proceedings included High Court judicial review decisions (eg Langstaff J [2010] EWHC 580 (Admin) and [2010] EWHC 1335 (Admin)) and decisions of the Northern Ireland Queen's Bench (Treacy J [2010] NIQB 46 and [2010] NIQB 56). The Supreme Court allowed the appeals and quashed the decisions refusing oral hearings.