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

Procedural fairness ordinarily requires an oral hearing where important facts relevant to risk are disputed, or where explanations or mitigation require assessment. The decision to direct an oral hearing is distinct from the decision as to when the hearing can take place. A pending police investigation does not justify concluding the review on paper where the disputed allegations are central to risk and the Parole Board can use case-management powers to obtain further evidence, adjourn the hearing or proceed on the evidence available. A provisional paper decision must not become final while the prisoner has had no fair opportunity to contest allegations that materially affected continued detention or recommended offending-behaviour work.

The claimant, a determinate-sentence prisoner recalled to custody, challenged the Parole Board’s refusal to grant an oral hearing. The recall followed allegations that he had accessed offence-related pornography, used dating websites, deleted browsing history and made admissions during a polygraph examination. He denied most allegations and offered an explanation for deleting the history.

The Board provisionally decided that continued detention was necessary for public protection. It refused an oral hearing because the police had retained the claimant’s mobile phone for forensic examination and the result was awaited. The paper decision consequently became final. The central issue was whether fairness required an oral hearing despite the outstanding investigation.

1. The claim succeeded. The refusal of an oral hearing was quashed, and an oral hearing before the Parole Board was directed.
2. The claimant had disputed important factual allegations, or advanced explanations and mitigation, which informed the assessment of risk. Under the principles in R(Osborn) v Parole Board [2014] AC 1115, fairness required the Board to consider whether oral examination was needed both for its independent risk assessment and to enable the prisoner to participate effectively in a decision with important consequences.
3. The Board itself recognised that the forensic analysis was crucial to exploring the alleged breaches and that the matter should be explored at an oral hearing. That did not justify treating the hearing as premature. The decision to grant an oral hearing was separate from the decision when the case was ready to be heard.
4. The Board should have used its powers under rules 6(3) and 6(11) of the Parole Board Rules 2019 to give directions, obtain the initial forensic material and polygraph interview record, timetable a hearing, and later decide whether to adjourn or proceed if the full analysis was unavailable.
5. Concluding the case on paper meant that a provisional finding of continued detention became final without the claimant having an opportunity to contest allegations fundamental to the risk assessment. That was contrary both to the Board’s Guidance on Allegations and to the fairness principles in Osborn.
6. The possibility of a later referral by the Secretary of State did not cure the unfairness. Under sections 239(2)–(4) of the Criminal Justice Act 2003, the Board had a duty to consider the recall on the evidence before it. That duty was important and necessary: R(Calder) v Secretary of State for Justice [2015] EWCA Civ 10150. Deferring the issue effectively delegated the fairness decision and risked substantial delay. Other disputed allegations, including the alleged polygraph admissions, would in any event remain unresolved.