Stubbs, R (On the Application Of) v The Parole Board

The Parole Board must ask whether fairness requires an oral hearing in light of the facts and the importance of what is at stake. The inquiry is distinct from the prospects of release or transfer, and a prisoner need not show that a provisional paper decision is wrong. An oral hearing may be required where important facts or explanations are disputed, a fair independent risk assessment cannot otherwise be made, the prisoner needs to present his case or test evidence, or participation itself has substantial value. The reviewing court must determine procedural fairness for itself. A refusal based on treating the paper decision as correct, or on the prospects of release, is legally erroneous. A hearing may remain required even where the eventual outcome might be unchanged.

The claimant was an indeterminate sentence for public protection prisoner who sought a progressive move to open conditions. He disputed substantial parts of the parole dossier, including intelligence reports and accounts of his custodial behaviour. He also wished to explain his disengagement from the Kaizen programme, challenge alleged discrimination at HMP Gartree and call witnesses.

A single Parole Board member assessed the case on the papers, refused release or a recommendation for transfer, and declined to convene an oral hearing. A Duty Member rejected a renewed request, treating the written representations as sufficient and finding no basis to put the paper decision seriously in question. The claimant sought judicial review of the refusal to hold an oral hearing.

1. Disposition. The claim succeeded. The refusal of an oral hearing was unlawful, the decision was quashed, and an oral hearing before the Parole Board was directed.
2. Correct legal approach. The governing principles were established in R (Osborn and Booth) v Parole Board [2013] UKSC 61. The Board must determine whether fairness requires an oral hearing, having regard to the facts and the importance of the decision. The request is not an appeal against a paper decision. The prisoner need not establish that the paper decision was wrong, and the question is not answered by assessing the prospects of release. The reviewing court must determine for itself whether a fair procedure was followed.
3. Errors in the decision-making. The Duty Member treated the paper decision and its factual account as presumptively correct. The Member also approached the request by reference to outstanding risk-reduction work and limited progress. That reasoning applied the wrong test and placed the merits of the paper decision before the question whether a hearing was required.
4. Disputed facts and risk assessment. The claimant disputed important dossier material and offered different explanations for events said to demonstrate poor custodial behaviour. The intelligence reports contained general assertions and limited supporting evidence. A hearing was needed to test credibility and explanations. The Board also failed to address whether it could fairly assess risk without seeing and questioning the claimant, despite the complexity of his history, his incomplete offending-behaviour work, his lack of direct engagement with staff and the factual error concerning expiry of his tariff.
5. Effective participation. The claimant had identified officers whom he wished to call. His allegations of discrimination and explanations for disengagement depended substantially on his subjective views. The Board failed to consider whether a hearing was needed to enable him to present his case and test the views of those who had dealt with him. An oral hearing also had independent participatory value, particularly given his lengthy custody, lack of progress at HMP Gartree and the absence of a practical route out of the impasse.
6. Relief. Section 31(2A) of the Senior Courts Act 1981 did not prevent relief. The court could not conclude that it was highly likely that the outcome would have been substantially the same after a fair hearing. The disputed facts, complex issues and risk assessment made the outcome impossible to predict. In any event, the denial of the participatory hearing produced a materially different outcome. The court also applied the approach in R v Chief Constable of the Thames Valley Police, ex p Cotton [1990] IRLR 344, that courts should be reluctant to assume that the same result would have followed without an adequate opportunity to present the case.

This was a first-instance judicial review. Permission was granted on 15 January 2021 by Mr David Lock QC sitting as a Deputy High Court Judge. The Administrative Court then determined the claim and quashed the Parole Board’s decision.