Knights v The Parole Board of England and Wales

Fairness does not require an oral hearing in every review concerning a post-tariff indeterminate sentence prisoner. The question depends on the issues genuinely arising at the time of the decision and the importance of what is at stake. A review may properly be concluded on the papers where no material factual, risk-assessment or case-management issue requires oral examination.

A Parole Board policy indicating that deferrals should not normally exceed four months is lawful if it remains guidance rather than an inflexible rule. Individual circumstances must remain decisive. Article 5.4 does not require every review to take place immediately after completion of a rehabilitative course or assessment, provided the system does not create avoidable and significant delay.

The claimant was serving an imprisonment for public protection sentence. His tariff had expired, but he remained detained following recalls and further risk-management requirements. In March 2017 a single Parole Board member decided on the papers that he was unsuitable for release or transfer to open conditions. The claimant requested an oral hearing and asked that the review be deferred until after completion of the Healthy Sex Programme and preparation of updated reports.

The Board refused both requests, relying in part on its Deferrals and Adjournments guidance, which stated that deferrals should not normally be granted where a report was unlikely to be available within four months. The claimant challenged the refusal of an oral hearing, the policy, and its application. The central issues were whether fairness required an oral hearing, whether the policy unlawfully fettered discretion, and whether refusing deferral breached article 5.4 or the common law duty of fairness.

1. Oral hearing. The claim challenging refusal of an oral hearing failed. The claimant’s request was inseparable from his request for deferral and accepted that he would not be considered for release or open conditions until completing the Healthy Sex Programme. At the relevant time there was no dispute about the outcome or future management of his case, and no anticipated need to hear psychological evidence. The guidance in Osborn and others v Parole Board [2014] AC 1115 therefore did not require an oral hearing. The fact that most post-tariff cases may require one did not mean that every review did.
2. The court was required to determine for itself whether the procedure was fair, rather than merely review the reasonableness of the Board’s decision. On that basis, there was no unfairness in deciding the case on the papers.
3. Deferral policy. The policy did not impose an inflexible four-month cut-off. It required decisions to be based on individual circumstances and stated that deferrals should not normally or generally be granted in the specified circumstances. A discretion to defer for longer remained. The policy was therefore not an unlawful fetter. R (Guittard) v Secretary of State for Justice [2009] EWHC (Admin) did not assist because the wording and practical operation of that policy differed.
4. Application of the policy. Refusal to defer was rational and proportionate. It was legitimate to avoid repeated or lengthy deferrals within a review system serving all prisoners. R (Noorkoiv) v Secretary of State for the Home Department and another [2002] EWCA Civ 770 concerned an essentially automatic delay in reviewing detention and was distinguishable. Article 5.4 did not require a review immediately after a course and assessment, although excessive delay in providing treatment or arranging the next review could be unlawful.

The claim was dismissed. The judge observed that Board members should be reminded that the discretion to defer beyond four months remained available.

The judgment describes earlier proceedings in the claimant’s related litigation. An application for judicial review concerning his continued detention was dismissed by Elisabeth Laing J, and the appeal was dismissed by the Court of Appeal in [2017] EWCA 1053 (Civ). The present claim was a separate first-instance judicial review in the Administrative Court.