Kamahl Ford, R (on the application of) v The Parole Board for England and Wales

Procedural fairness generally requires the Parole Board to hold an oral hearing where the facts material to risk or release are disputed, significant mitigation requires credibility assessment, or the prisoner’s participation may materially assist. The need is particularly acute for an indeterminate sentence prisoner detained beyond tariff, absent a good reason for refusing a hearing. The Board must consider not only release, but also treatment, offending-behaviour work and future management. A prisoner need not show that the paper decision was wrong. The court itself determines whether the procedure was fair. Failure to comply with these common-law requirements also breaches Article 5(4) ECHR through section 6(1) of the Human Rights Act 1998.

The claimant, an IPP prisoner detained well beyond tariff, was recalled to custody shortly after release for alleged breaches of licence conditions. A single-member panel made a provisional paper decision under Rule 19 of the Parole Board Rules 2019, finding him unsuitable for release. A duty member refused his Rule 20 request for an oral hearing, and an assessment panel dismissed his Rule 28 reconsideration application.

The claimant sought judicial review, alleging procedural unfairness, inadequate reasons and breach of Article 5(4) ECHR. The central issue was whether fairness required an oral hearing before the provisional decision became final.

1. Claim allowed. The Rule 28 decision and the decision that the claimant was unsuitable for release were quashed. The matter was remitted to the Parole Board for an expedited oral hearing.

2. Applying the guidance in R (Osborn) v Parole Board [2014] AC 1115, fairness required an oral hearing. The claimant was an IPP prisoner detained substantially beyond tariff. His case therefore required especially anxious scrutiny, and the presumption in favour of a hearing identified in R (Somers) v The Parole Board [2023] EWHC 1160 (Admin) applied. The Board had identified no good reason for refusing a hearing and had wrongly approached the claimant as bearing the burden of demonstrating that one was necessary.

3. There were material factual disputes. The claimant denied alleged threats to prison officers, and disputed the circumstances of an abortive improvement-plan meeting. Those matters contributed materially to the risk assessment and required oral testing of his account and credibility. The fact that evidence might amount to one account against another was a reason to hold a hearing, not to refuse one.

4. The Board also had to assess whether the claimant’s psychological and cognitive characteristics affected his ability to comply with licence conditions and what intervention or offending-behaviour work might improve his prospects of release. Those issues were suitable for assessment by seeing and questioning him in person. His legitimate interest in participating, and his positive steps towards rehabilitation, also supplied matters to which he could usefully contribute.

5. The court itself determines whether a fair procedure was followed; it does not merely review the reasonableness of the Board’s view of fairness. Since the common-law duty was breached, the Board also acted incompatibly with Article 5(4) ECHR, contrary to section 6(1) of the Human Rights Act 1998. The reasons ground was academic and no finding was made on it.