Daniel Owen, R (on the application of) v Parole Board for England and Wales

Fairness requires an oral parole hearing where disputed facts are relevant, or potentially relevant, to the risk assessment or future management of the prisoner. The prisoner need not show that the paper decision was wrong or that an oral hearing would produce a different result.

The test applies to all prisoners. A previous oral hearing is relevant only where there has been no material change in circumstances, a situation likely to be rare. Written representations may be inadequate where credibility, competing accounts, factual errors or disputed professional assessments require oral explanation and questioning.

The claimant, a recalled prisoner, challenged the Parole Board’s refusal to direct an oral hearing for his 2024 parole review. He disputed aspects of the dossier, including accounts of his conduct, risk factors and the reliability of offender-management material. He had also begun risk-reduction work and there were differing assessments concerning Offender Personality Disorder.

The Board had previously held an oral hearing in 2023 and considered that the written dossier was sufficient. The central issue was whether fairness required a further oral hearing in the particular circumstances.

1. The claim succeeded. The decision refusing an oral hearing was quashed, and the Parole Board was directed to convene an oral hearing.
2. Under [2013] UKSC 61, the question is whether fairness requires a hearing in light of the facts of the case and the importance of what is at stake. The court must determine for itself whether a fair procedure was followed.
3. A hearing is not required for every factual dispute. However, it will normally be necessary where disputed facts are relevant, or potentially relevant, to the issue being decided. The assessment must take account of the prisoner’s ability to explain and test evidence, the independent assessment of risk, and the prisoner’s legitimate interest in participating in the decision.
4. The claimant could not use the review to reopen the decision to recall him. His continuing dispute about the circumstances leading to recall, considered alone, did not require an oral hearing. Those circumstances nevertheless remained relevant to the current risk assessment.
5. The later disputed conduct, the claimant’s progress and commitment in risk-reduction work, conflicting assessments concerning Offender Personality Disorder, and alleged factual errors in the dossier were potentially significant. Taken together, they involved matters of nuance, competing interpretations and credibility. Written disagreement expressed through solicitors was insufficient. The claimant needed to explain his account orally, answer questions and have an opportunity to question competing accounts.
6. The previous oral hearing did not materially assist the Board’s reasoning because the claimant’s circumstances had changed. It would be an extremely rare case in which there had been no change at all since an earlier hearing.

This was a first-instance judicial review claim brought pursuant to permission granted by HH Judge Keyser KC. No appellate decision is stated in the judgment.