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

The Parole Board must grant an oral hearing whenever procedural fairness requires it, assessed by reference to the facts of the case and the importance of what is at stake. In recall cases, the prisoner’s conditional loss of liberty requires particularly anxious scrutiny. Material disputes of fact, mitigation, or evidence bearing on risk may require oral examination, even where the hearing might not change the ultimate outcome. The issue is whether an oral hearing is needed for a fair decision, not whether release is likely. On judicial review, the court determines for itself whether a fair procedure was followed; the issue is not confined to Wednesbury irrationality.

The claimant had been released on licence following an extended sentence for serious sexual offences against a young child. He was recalled to custody after alleged failures to comply with reporting conditions and concerning conduct involving children and books about child sexual abuse.

The Parole Board considered the matter on paper and decided that continued detention was necessary for public protection. It later refused the claimant’s request for an oral hearing, although his solicitors disputed important facts and advanced explanations and mitigation. The claimant brought judicial review proceedings. The central issue was whether fairness required an oral hearing under the principles stated in Osborn v Parole Board [2013] UKSC 61.

1. Claim allowed in part. The decision refusing an oral hearing was quashed. The court granted no wider relief.
2. The governing principles were those stated in Osborn v Parole Board [2013] UKSC 61. The Parole Board must hold an oral hearing where fairness requires it in light of the facts and the importance of the decision. The question is distinct from the likelihood of release. A prisoner need not show that the paper decision was wrong or likely to be wrong.
3. The reviewing court must determine for itself whether a fair procedure was followed. The inquiry is not limited to Wednesbury review.
4. This was a recall case involving deprivation of conditional liberty. It therefore required particularly anxious scrutiny. The panel’s paper decision relied on alleged reporting failures, incidents involving young children, and the claimant’s possession or acquisition of books concerning sexual abuse.
5. The claimant had raised disputes of fact and matters of mitigation which were important to the panel’s conclusions. His explanations included a medical reason for one reporting failure, the availability of CCTV evidence, the circumstances of his contact with children, and the purpose of the books. He also had evidence to contribute which could not fairly be ignored before being tested.
6. The Parole Board had to be, and appear to be, independent and impartial. It could not be predisposed towards the official account or official risk assessments. Applying those principles, an oral hearing should have been granted.
7. The Board was required to consider whether the decision refusing an oral hearing should be remade and revisited. If a later review had superseded the decision, that might affect whether reconsideration was necessary, but the court made no determination on that issue.

The claimant obtained permission to bring judicial review proceedings from Ian Dove QC, sitting as a deputy High Court judge, on 30 May 2014. The present court determined the judicial review claim at first instance.