Paul Somers, R (on the application of) v Parole Board for England and Wales

When deciding whether a post-tariff life prisoner should receive an oral parole hearing, the Parole Board must ask whether fairness requires one in the particular circumstances. The likelihood of release or transfer to open conditions is a separate question and cannot determine whether a hearing is required.

There is a strong presumption in favour of an oral hearing for a post-tariff life prisoner. A refusal should be supported by a good reason. An oral hearing is particularly important where risk, insight, disputed facts, new expert evidence or barriers to sentence progression require closer examination. If the Board is in doubt, it should hold a hearing.

The claimant was a post-tariff life prisoner whose eighth parole review was considered on the papers. He did not contend that he was ready for release, but sought progression and requested an oral hearing to examine his current risk, new psychological evidence, disputed allegations concerning his conduct towards staff and an apparent impasse in his sentence progression.

The Parole Board refused release, declined to recommend open conditions and then refused an oral hearing. The claimant sought judicial review, alleging common law procedural unfairness and a breach of article 5(4) of the European Convention on Human Rights. The central issue was whether the Board had properly applied the fairness principles governing oral parole hearings, particularly for post-tariff life prisoners.

1. The claim succeeded and the decision was quashed. The Parole Board committed a reviewable error by failing to apply the fundamental test in R (Osborn and Booth) v Parole Board; In re Reilly [2013] UKSC 61, namely whether fairness required an oral hearing in the circumstances of the particular case. The parole review was remitted for an oral hearing.

2. The question whether fairness requires an oral hearing is distinct from the likelihood of release or transfer to open conditions. It was therefore wrong to refuse a hearing because release appeared unlikely, there was no professional support for open conditions, little might have changed, or the same substantive decision might follow a hearing.

3. The case required oral examination of new psychological evidence, changes to the sentence plan, disputed and inadequately evidenced allegations concerning the claimant's behaviour towards female staff, and the claimant's insight and current risk. These matters could affect his management and eventual progression even if immediate release was improbable. His lengthy post-tariff detention strengthened the need for a hearing.

4. The Supreme Court's guidance was tantamount to a presumption in favour of an oral hearing for post-tariff life prisoners. A good reason should therefore exist before the Board refuses such a hearing. Questions of insight, behaviour and risk will almost certainly be better examined through direct participation and oral evidence. Where doubt remains, the Board should permit a hearing.

5. The Board's obligation to consider release under section 28 of the Crime (Sentences) Act 1997 does not depend upon the prisoner's own position on release. That obligation engages article 5(4) of the European Convention on Human Rights. Compliance with the common law duty of procedural fairness should ordinarily secure compliance with the Convention's procedural requirements.

• High Court (Administrative Court): Quashed the Parole Board's decision of 5 January 2022 and remitted the parole review for an oral hearing.

• Parole Board: On 5 January 2022 refused the claimant's application for an oral hearing, leaving the provisional paper decision against release or transfer to open conditions as final.

• Parole Board: On 3 December 2021 provisionally declined release or a recommendation for open conditions and found no reason to convene an oral hearing.