Tahir Malik, R (on the application of) v The Parole Board of England and Wales

The Parole Board must hold an oral hearing whenever fairness requires it, considering the facts and importance of the decision. It must not focus on the likely outcome or require a realistic prospect of release. Relevant matters include disputed risk evidence, treatment needs, rehabilitation, risk management and the prisoner’s participation. For post-tariff prisoners, scrutiny becomes more anxious as detention continues after tariff expiry. Failure to apply these principles may breach Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

The claimant, a serving prisoner detained following a murder conviction, had spent more than 30 years in custody, including 14 years after expiry of his tariff. The Parole Board reviewed his detention on the papers, decided that he was unsuitable for release and refused his request for an oral hearing.

He sought judicial review, alleging procedural unfairness. The issues included disputed and changing psychological evidence, uncertainty about treatment pathways, risk management and the significance of his participation. The central question was whether fairness required an oral hearing and whether refusal violated Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

1. Claim succeeded. The refusal of an oral hearing was unlawful and was quashed. The Parole Board was directed to list an oral hearing before the original decision-maker or decision-makers. A declaration was made that the claimant’s rights under Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms had been breached.
2. Under rule 19 of the Parole Board Rules, applying R (Osborn) v Parole Board [2014] AC 1115, the question is whether fairness requires an oral hearing in light of the facts and the importance of what is at stake. The prisoner need not show that the paper decision was wrong or that release is likely.
3. The Board must consider whether oral evidence or questioning would assist its independent assessment of risk and how risk should be managed or reduced. Relevant matters included disputed or changing psychological evidence, treatment options, the failure of a previous treatment pathway and the practical means of rehabilitation.
4. The Board must not adopt an outcome-focused approach. It must engage with the material representations and explain why the identified issues do not require an oral hearing. The prisoner’s legitimate interest in participating in an important decision must also be considered.
5. The claimant’s post-tariff status, prolonged detention, uncertainty about treatment and risk management, changing psychological formulations and disputed evidence indicated that fairness required oral evidence. The Board’s failure to address those matters also violated Article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. No order for costs was made because costs were not pursued.

First-instance judicial review proceedings. Permission was granted by HHJ Saffman on 25 February 2025. The claim was then allowed by the High Court (Administrative Court).