Shane Wylie, R (on the application of) v Parole Board for England and Wales

Procedural fairness requires the Parole Board to consider whether an oral hearing would materially assist its independent assessment of risk and would allow the prisoner to participate effectively. The request is not an appeal against a provisional paper decision, and the prisoner need not show that the paper decision was wrong. An oral hearing, or at least an adjournment, may be required where important facts remain disputed, particularly where an unresolved police investigation is central to risk assessment. The Board must also consider evidence of rehabilitative or offending-behaviour work, even where it is not an accredited programme. The need for a speedy review does not displace overall fairness.

The claimant, a recalled prisoner serving a sentence for rape, challenged the Parole Board’s refusal of his request for an oral hearing. The Board relied substantially on an unresolved police investigation into a further rape allegation and on the absence of accredited offending-behaviour work. The claimant relied on police correspondence indicating that the allegation was likely to result in no further action, and on other work undertaken in custody. The central issue was whether the refusal of an oral hearing was procedurally unfair in the circumstances.

1. Claim succeeded in substance. The refusal of an oral hearing was procedurally unfair, although the court granted a declaration rather than quashing the decision because circumstances had materially changed.
2. The court applied the principles in R (Osborn) v Parole Board [2014] UKSC 61. A request for an oral hearing is not an appeal against a provisional paper decision. The question is whether an oral hearing is appropriate to secure fairness, not whether the paper decision was wrong or might have been wrong.
3. The further rape allegation was fundamental to the risk assessment. The Board failed to engage with police indications that the complaint had been withdrawn and that the matter appeared likely to be closed. Those indications provided relevant information about the likely timescale, including the four-month period in the guidance. Procedural fairness therefore required an oral hearing, or at least an adjournment to clarify the position.
4. The claimant had not completed an accredited offending-behaviour programme, but he had undertaken significant other work, including work concerning relapse and further offending. The Board failed to address the detail and possible impact of that work on risk. This independently supported the need for an oral hearing.
5. The desirability of a speedy review was relevant but could not justify refusing an oral hearing as a means of saving time. The proposed possibility of a later referral did not cure the unfairness.
6. The court declared the challenged decision procedurally unfair. The Board was ordered to pay the claimant’s costs on the standard basis, subject to assessment if not agreed.