Billy Joe Thompson, R (on the application of) v The Secretary of State for Justice

Where the Secretary of State relies on information arising after a Parole Board hearing to reject a recommendation for transfer to open conditions, procedural fairness may require an oral hearing.

That requirement is particularly important where the new material raises disputed factual issues, the prisoner’s account has credible supporting material, and the implications of the allegations are ambiguous. The hearing may be conducted by the Parole Board following referral or by the Secretary of State herself. The court determines objectively whether the procedure was fair. Failure by the prisoner to request a hearing does not necessarily cure unfairness. The absence of a further hearing may establish unfairness without establishing irrationality.

The claimant was serving a discretionary life sentence and was eligible for transfer to open conditions. Following an oral hearing, the Parole Board recommended his progression to open conditions on 6 March 2024.

Further information then emerged concerning his relationship with another prisoner, alleged physical conduct, letters and possible sexual harassment. The Secretary of State rejected the recommendation, relying on the new material and concluding that the claimant’s risk was not manageable in open conditions.

The claimant sought judicial review on grounds of procedural unfairness, departure from policy and irrationality. The central issue was whether fairness required the new material to be examined at a further oral hearing.

1. Claim allowed in part. The Secretary of State’s decision was quashed and remitted for reconsideration following an appropriate oral hearing. It was for the Secretary of State to decide whether the hearing should follow referral back to the Parole Board or be convened by her.
2. The Secretary of State was not under an automatic obligation to seek the Parole Board’s advice, and was not bound to follow its recommendation, provided that she acted rationally. However, once new material was relied on, she remained under a duty to act fairly.
3. On the facts, fairness required an oral hearing. The Secretary of State relied on disputed matters concerning the claimant’s relationship with another prisoner, whether there had been a fight, whether he had pinned the other prisoner down, whether the letters were his, and whether his account had changed. Material obtained after the Parole Board hearing gave at least some support to the claimant’s account. The implications of the allegations were therefore too ambiguous for safe conclusions to be drawn without closer examination.
4. The oral hearing could properly be conducted either by the Parole Board or by the Secretary of State. The court would not dictate which route should be adopted.
5. The claimant’s failure to request an oral hearing did not remove the unfairness. The question whether fairness required a hearing was objective and depended on the circumstances of the case.
6. The policy concerning recommendations based on incorrect information was not determinative. It addressed information that was incorrect when the Parole Board made its recommendation, rather than genuinely new information arising afterwards. The court did not quash the decision on the policy ground.
7. The irrationality ground was rejected. The failure to hold a further hearing made the procedure unfair, but it was not shown that the decision was irrational merely because further inquiry had not been undertaken.