Gifford-Hull v Parole Board for England And Wales

Where the Parole Board withholds material under rule 17 of the Parole Board Rules 2019, fairness requires the panel to consider case-specific measures to mitigate the effects of non-disclosure. A gist and written representations may be insufficient where the undisclosed material materially contradicts the prisoner’s evidence and informs the Board’s risk assessment.

Where the Board must assess credibility, understanding, empathy or the risk of further harm, it may need to hear the prisoner orally. The court must assess fairness for itself by examining the proceedings as a whole. A procedural breach warrants quashing where the outcome might have been different. Failure to object does not necessarily waive the defect, particularly where the prisoner could not assess the significance of material he had not seen.

The claimant, a life prisoner undergoing a pre-tariff review, challenged two decisions of the Parole Board. The Board had directed that his adult son’s victim personal statement should be disclosed only in gist form, and later refused to recommend his transfer to open conditions.

The claimant’s solicitor did not provide the undertaking required for access to the full statement. The statement materially contradicted the claimant’s evidence about his relationship with his children. The Board revoked a proposed psychological assessment, determined the case on the papers and relied on the resulting concerns in refusing progression. Grounds concerning the non-disclosure decision and irrationality were withdrawn after the procedural-fairness ground succeeded. The central issue was whether the procedure, viewed as a whole, was fair.

1. The claim succeeded on procedural unfairness. The decision of 25 March 2020 was quashed and the case was remitted to a fresh panel for an oral hearing. The hearing was to be expedited, but no fixed timetable was imposed.

2. The Board is bound to act procedurally fairly. The content of that duty is context-sensitive, but a prisoner must have a fair opportunity to answer adverse material which the Board takes into account. The court must determine for itself whether the procedure was fair.

3. Following a rule 17 direction, the panel must consider the effect of withholding material and whether further measures are required to mitigate any resulting unfairness. The adequacy of a gist, written representations or other safeguards depends on the facts of the particular case.

4. Here, the full victim statement presented a markedly different account from the claimant’s oral evidence. That divergence generated the Board’s concerns about his understanding of his children’s trauma, his wish to resume contact, his respect for their independence and the risk of manipulation and further psychological harm. Those concerns became central to the refusal of open conditions.

5. Once the proposed psychological report was unavailable, it was necessary to allow the claimant to give further oral evidence. The Board needed to assess his credibility and understanding by hearing and evaluating his response. Determining the case on the papers, while the claimant lacked detailed knowledge of the material relied upon, did not provide a fair opportunity to address the concerns.

6. The claimant was not taken to have waived the defect. The significance of the undisclosed statement could not readily have been appreciated in advance, and the Board retained an overriding duty to ensure a fair procedure. The claimant only had to show that the outcome might have been different, which he established.

7. It was inappropriate to determine the withdrawn grounds or give general guidance on them. The parties were directed to make written submissions on costs.

The claim was a first-instance judicial review. Permission was granted by His Honour Judge Lambert on 16 October 2020. No prior appellate judgment was stated.