Neil Garmson, R (on the application of) v The Parole Board for England and Wales

When deciding whether a post-tariff indeterminate sentence prisoner should receive an oral Parole Board hearing, the question is whether fairness requires one in the light of the facts and the importance of what is at stake. The Board must not decide the issue by reference to the likely outcome of the review, the likelihood of release, or administrative speed alone. Where tenable disputes about risk or professional evidence require oral explanation or questioning, fairness may require a hearing. A previous direction for an oral hearing does not necessarily create a legitimate expectation if the governing rules permit reconsideration and no unambiguous promise was made. Failure to follow a fair procedure in this context also breaches Article 5.4.

The claimant, a post-tariff prisoner serving an indeterminate sentence, challenged the Parole Board’s refusal to reconsider its decision to cancel an oral hearing and determine his case on the papers. The Board had previously directed an oral hearing, but later relied on the need for a speedy review, the claimant’s prospective participation in the Healthy Sex Programme, and the anticipated availability of better evidence.

The claimant alleged procedural unfairness, frustration of a legitimate expectation arising from the earlier direction, and breach of Article 5.4 of the Convention. The central issues were whether fairness required an oral hearing and whether the earlier direction prevented reconsideration under the Parole Board Rules 2019.

1. Ground 1 succeeded. The court had to determine for itself whether a fair procedure was followed. The applicable question was whether fairness required an oral hearing in the light of the facts and the importance of what was at stake, applying the guidance in Osborn and the related guidance in Somers and McKilligan.
2. The claimant was a post-tariff indeterminate sentence prisoner. The Board was required to consider the significance of continued detention, which had to be justified by continuing dangerousness independently assessed by the Board. The claimant also had a legitimate interest in participating in the decision. His stated intention to challenge risk assessments, the dossier and the Community Offender Manager’s views raised issues which could not be rejected as untenable without consideration at an oral hearing.
3. The Board’s reliance on obtaining a speedy review was impermissible in the circumstances. An oral hearing had already been listed and was due shortly. The Board also focused impermissibly on the likely outcome, including the anticipated effect of the Healthy Sex Programme and the possibility of later evidence. The likelihood of release or transfer was distinct from whether fairness required an oral hearing.
4. Ground 2 failed. The earlier direction for an oral hearing was made under the Parole Board Rules 2019, which permitted reconsideration. It contained no clear, unambiguous and unqualified promise that the power to reconsider would not be exercised. Alternatively, the reconsideration procedure, including an opportunity to make representations, made departure reasonable and proportionate.
5. Ground 3 succeeded. Applying the reasoning in Osborn, the failure to comply with the common-law duty of procedural fairness also meant that the Board failed to act compatibly with Article 5.4. The claim therefore succeeded.

This was a first-instance judicial review in the High Court (Administrative Court). Permission to proceed had been granted by Andrew Kinnier KC sitting as a Deputy High Court Judge on 23 November 2023.