David Clarke, R (on the application of) v Parole Board for England and Wales

Whether fairness requires an oral hearing in a parole review is an objective, hard-edged question for the judicial review court. The governing test is not whether the hearing has a realistic prospect of producing immediate release or transfer. The Board’s decision may affect future prison management, risk-reduction work and later reviews. Procedural fairness also protects participation, dignity and the rule of law. A hearing will usually be required where representations materially challenge adverse behaviour reports or recommended treatment with such future effects, even if continued custody appears inevitable. The Board may consider whether a hearing could improve the outcome, but it cannot make a realistic prospect of success a precondition or refuse solely because the outcome seems unchanged. A previous oral hearing does not determine the issue on a later review.

The claimant, serving a life sentence, had received an oral hearing at a 2022 pre-tariff review. During the later on-tariff review, a panel made a paper decision under rule 19 of the Parole Board Rules 2019, refusing release or transfer and declining an oral hearing. His rule 20(1) application was refused at the second stage under rule 20(5), making the first-stage decision final under rule 20(6). Judicial review concerned whether fairness required an oral hearing despite outstanding treatment work and an apparently unpromising immediate outcome. The central issues were disputed reports of concerning behaviour, delay in accessing the Personality Disorder Pathway, and whether alternative routes to progress required examination.

1. Claim succeeded. The refusal to direct an oral hearing was unlawful. Judicial review was granted and the Defendant was ordered to hold an oral hearing as soon as reasonably practicable. A previously contemplated costs application was not pursued.
2. The governing guidance was R (Osborn) v Parole Board [2013] UKSC 61 ([2014] AC 1115). Whether fairness required an oral hearing was an objective, hard-edged question for the court to decide for itself, on the materials available to the Board and with regard to its reasons only insofar as they were persuasive.
3. The Supreme Court had rejected the narrow Outcome-Utility approach. A realistic prospect that the hearing would produce release or transfer was not the test and could not be made a precondition. The practical scope of a parole decision extends beyond its immediate outcome because findings about risk, behaviour and treatment may affect future prison management and later reviews. Procedural fairness also engages participatory justice, dignity and the rule of law.
4. The prospect of an oral hearing improving the immediate outcome was not legally irrelevant. The prisoner could rely on it, and the Board could assess it. But the Board could not refuse a hearing solely because it considered that the outcome would remain continued custody or closed conditions, without further examining the wider fairness question. The court did not treat R (Somers) v Parole Board [2023] EWHC 1160 (Admin) or R (Garmson) v Parole Board [2024] EWHC 1106 (Admin) as establishing the contrary rule. The description of the hearing as premature was recognised as outcome-focused, consistent with R (McKilligan) v Parole Board [2024] EWHC 336 (Admin) at §37.
5. The claimant’s disputed concerning behaviour was a sufficient reason for a hearing. The provisional decision repeatedly relied on adverse reports and alleged drug use, non-attendance and other conduct in assessing risk. The claimant’s representations and supporting statements placed that material in question, and it could affect future management and reviews.
6. Delay in accessing the Personality Disorder Pathway provided a second, independent reason. The materials did not give a practical timetable for starting the pathway, while earlier evidence contemplated alternative routes to progress. The Board’s preference for the pathway, and the consequences of delay, required the claimant to be able to present his case orally, notwithstanding the earlier 2022 hearing.