Osborn v The Parole Board

The Parole Board must hold an oral hearing whenever procedural fairness requires it in the light of the facts and the importance of what is at stake; an exhaustive rule cannot be given, but hearings will commonly be required where important facts are disputed, where credibility or mitigation must be tested orally, where risk assessment cannot be fairly carried out on paper, or where the prisoner needs a face-to-face opportunity to participate.

This consolidated appeal concerned three prisoners (Osborn, Booth and Reilly) challenging the Parole Board's refusal to afford oral hearings before deciding on re-release or transfer to open conditions. The cases reached the Supreme Court by way of appeal from the Court of Appeal (England & Wales) and the Court of Appeal (Northern Ireland). The central question was when, consistent with domestic common-law fairness and article 5(4) ECHR, the Board is required to hold an oral hearing rather than decide on paper.

The court was invited to review the Board's rules, internal guidance and practice and to state the legal tests for when oral hearings are required. The court considered the statutory framework under the Criminal Justice Act 2003 and the Crime (Sentences) Act 1997, the Parole Board Rules, and Strasbourg authorities including Waite, Hussain and Singh. The common question was whether the Board's paper-only practice satisfied domestic and Convention standards of procedural fairness.

Held (majority, Lord Reed)

1. Overall disposition: the appeals are allowed and the Parole Board breached the common law duty of procedural fairness and article 5(4) in each case by failing to offer an oral hearing; declarations to that effect are made.
2. Principle: in order to comply with common-law standards of procedural fairness (and, where engaged, article 5(4) ECHR via section 6(1) HRA), the Board should hold an oral hearing whenever fairness to the prisoner, judged by the facts of the case and the importance of what is at stake, requires one. The court emphasises that no exhaustive list is possible but identifies recurring circumstances in which a hearing will often be required:
• a) where facts which appear important are disputed, or where an explanation or mitigation needs oral testing for credibility;
• b) where the Board cannot fairly make an independent risk assessment on paper (eg where characteristics are best judged in person or expert psychological assessments are disputed);
• c) where a face-to-face encounter or questioning of those who have dealt with the prisoner is necessary to put the case effectively or test views;
• d) where representations raise issues which, if unresolved, would significantly affect the prisoner’s future management or reviews such that it would be unfair for a provisional paper decision to become final.
3. Procedure and rule interpretation: the provisional nature of single-member decisions under the Parole Board Rules (rule 11/12) must be respected. A prisoner’s request for an oral hearing is not an appeal; the Board must consider whether a hearing is appropriate, not whether the paper decision is (presumptively) correct. If in doubt the Board should allow the hearing.
4. Independence and impartiality: the Board must evaluate Ministry-provided material independently and not be predisposed to the official account; procedural cost-savings are not a good reason to deny hearings where fairness requires them.
5. Relationship with Convention law: domestic common-law standards of fairness, applied and developed where necessary, will ordinarily satisfy article 5(4). Strasbourg authorities (Waite, Hussain, Singh) support the position that oral hearings are often required where assessment of personality, maturity or dangerousness is central, especially for post-tariff indeterminate prisoners.
6. Application to the three appellants: the court analysed each factual record and concluded that in Osborn, Booth and Reilly there were disputed or mitigatory matters, or issues affecting risk and future management, which required oral hearings; refusal therefore breached common law and article 5(4).
7. Damages: in Reilly the court refused to remit the case for an award of damages under section 8 HRA because no deprivation of liberty resulting from the breach was established; finding of violation alone was sufficient just satisfaction.
8. Remedies and guidance: declarations that the Board breached its duty of procedural fairness and article 5(4) are made in each case. The court gives detailed guidance to the Board about decision-making, the correct approach to requests for hearings, and the limited role of cost considerations.

• Court of Appeal (England & Wales): [2010] EWCA Civ 1409 - dismissed aspects of judicial review in Osborn and Booth; Court of Appeal accepted some factual disputes but held hearing unnecessary in the view of the panel (as summarised in judgment).
• High Court (Administrative Court): [2010] EWHC 580 (Admin) - Langstaff J dismissed Osborn's judicial review application.
• High Court (Administrative Court): [2010] EWHC 1335 (Admin) - Langstaff J refused permission in Booth.
• High Court (Northern Ireland): [2010] NIQB 46 and [2010] NIQB 56 - Treacy J found breach in Reilly and quashed the decision; awarded certiorari but no damages.
• Court of Appeal (Northern Ireland): [2011] NICA 6 - allowed the Secretary of State's appeal in Reilly; concluded paper decision sufficient.
• Supreme Court: [2013] UKSC 61 - allowed appeals and declared breaches of procedural fairness and article 5(4).