Dominic McKilligan v Parole Board for England and Wales

In a parole review, the question whether fairness requires an oral hearing is distinct from the prospects of release. The Parole Board must consider the facts and importance at stake, including material factual disputes, challenges to risk evidence, the need to test evidence or participate effectively, and representations placing significant aspects of a paper decision in question. In post-tariff lifer cases, it must scrutinise risk with increasing anxiety as detention continues. A results-led refusal, based on the supposed prematurity of an oral hearing, does not answer that question. Where treatment has stagnated, risk material is outdated or potentially prejudicial, and relevant professional views are absent, fairness may require an oral hearing.

The claimant, a post-tariff life prisoner, sought judicial review of the Parole Board’s refusal on 18 April 2023 to direct an oral hearing. The Board considered an oral hearing premature because planned one-to-one psychological work had not yet taken place and an updated risk assessment would later be required.

The claimant relied on disputed issues concerning risk, personality traits, treatment progression, dossier contents and missing professional recommendations. The reports had been prepared while Rule 2(22) of the Parole Board (Amendment) Rules SI/2022/717 and associated guidance restricted recommendations by prison and probation staff. The central issue was whether fairness required an oral hearing and whether the Board had addressed that question lawfully.

Claim succeeded. The refusal dated 18 April 2023 was quashed, and an oral hearing before the Parole Board was directed.

1. The statutory context was provided by section 28 of the Crime (Sentences) Act 1997. Under the Parole Board Rules 2019, a paper decision is provisional and the prisoner may request an oral hearing.
2. The court applied the guidance in R (Osborn, Booth and Reilly) v the Parole Board for England and Wales [2013] UKSC 61. The Board had to ask whether fairness required a hearing in light of the facts and the importance of what was at stake. That question was distinct from whether the prisoner was likely to be released, and the prisoner did not have to show that the paper decision was wrong. The common-law duty was informed by article 5(4) of the Convention and section 6(1) of the Human Rights Act 1998.
3. A bare assertion of a risk dispute was insufficient. Here, however, there were material issues concerning disputed personality traits and alleged manipulation, outdated assessments, the possible influence of a previously discredited report, omitted documents, and the absence of a clear treatment pathway. The dossier also left unresolved the significance of the claimant’s unsuitability for the Kaizen programme and his continuing stagnation. These matters fell within the circumstances identified in Osborn [2(ii)(b)] and [2(ii)(d)].
4. The claimant’s post-tariff status required particularly anxious scrutiny of risk. The approach in R (Somers) v Parole Board [2023] EWHC 1160 (Admin) reinforced the need for a good reason to refuse a hearing in such a case. No good reason was given.
5. R (Bailey and Morris) v Secretary of State for Justice [2023] EWHC 555 (Admin) demonstrated the potential importance of views from prison and community offender managers. Their recommendations were absent here because of the unlawful rule and guidance. The Board failed to consider whether that missing evidence supported an oral hearing.

The refusal adopted a results-led and premature approach. It failed to address the fundamental fairness question or the relevant elements of the claimant’s case.