Grinham, R (On the Application Of) v The Parole Board for England and Wales

A Parole Board oral hearing must be conducted fairly and with sufficient time for the prisoner to understand and answer the evidence, question witnesses and make effective submissions. The Board must actively manage its proceedings and comply with its own case-management directions. Where late evidence and unreasonable time pressure prevent meaningful participation, the resulting decision is unlawful. The court determines fairness for itself. Once procedural unfairness is established, the decision need only have been capable of being different; it need not be shown that a different outcome would probably have resulted. A rehearing is appropriate unless the court can safely conclude, in an exceptional case, that the outcome was inevitably the same.

The claimant, a recalled prisoner serving a determinate sentence, applied for judicial review of the Parole Board’s refusal to re-release him on licence. An expedited oral hearing had been ordered because of his serious illness and the need for a fair opportunity to challenge aspects of the recall and risk assessment.

Several reports and police records were served late or not obtained before the hearing. The claimant’s solicitor had limited time to take instructions, the Panel Chair imposed a strict personal time limit, questioning was curtailed and closing submissions were made in writing after further evidence was supplied. The central issue was whether these matters rendered the hearing procedurally unfair and, if so, what relief should follow.

1. Statutory test. Under Criminal Justice Act 2003, s 255C, continued detention after recall is justified only where it is necessary for the protection of the public. That test concerns the continuing risk of serious harm and does not require a balancing exercise between public protection and the benefits of release.
2. Procedural fairness. The Board was required to manage the case effectively and conduct the hearing in the manner most suitable for clarification of the issues and the just handling of the proceedings under the Parole Board Rules 2019. The principles in R (Osborn and Booth) v Parole Board required the court to determine fairness for itself and recognised the importance of oral participation, testing evidence and avoiding the prisoner’s legitimate sense of injustice.
3. Unfairness established. The late service of the Offender Supervisor’s report deprived the claimant’s solicitor of adequate time to take instructions. This was compounded by the Chair’s insistence that the hearing finish by around noon, despite the late start and the unresolved evidence. The resulting pressure materially restricted questioning, the claimant’s evidence and oral submissions.
4. The failure to obtain domestic-violence call-out records before the hearing was also significant. The records were later considered in the decision, while the claimant had no proper opportunity to address them or the concerns arising from them. The proposed residence condition could also have been advanced in response to the Panel’s concern that he might live with his partner.
5. Materiality and relief. It was unnecessary to show that the outcome would have been different. It was impossible to conclude that it would inevitably have been the same, and the concerns about the release plan might have been addressed through fuller evidence and submissions. The decision was therefore unlawful, quashed and remitted for an expedited oral rehearing by 30 September 2020. A video hearing was acceptable if face-to-face hearings remained unavailable; a telephone hearing was not.