Court of Appeal provides guidance on Parole Board oral hearings  

Osborn & Booth v The Parole Board [2010] EWCA Civ 1409

> judgment

The Court of Appeal considered two issues in these cases, which were heard together in order that the Court could provide further guidance on oral hearings challenges:

1. What criteria should the Parole Board apply in deciding whether to direct an oral hearing?
2. What approach should the Court adopt in reviewing the Parole Board’s decision not to grant an oral hearing?

Oral hearing

The Court [34] rejected the Appellants’ argument that an oral hearing should be granted on a much wider basis than previously thought (i.e. whenever characteristics pertaining to a prisoner’s personality and level of maturity are of importance in deciding his dangerousness). It also refused to accept the Appellants’ argument that the strength of the prisoner’s application for release was not relevant to the question of whether an oral hearing should be granted; [35], per Carnwath LJ:

“That, in my view, is far from saying that the Board is not entitled to take into account its own judgment on the basis of the material available to it, and to consider whether there is a realistic prospect of that being affected by an oral hearing. If not, then to hold an oral hearing, is not only a waste of public time and resources, but it risks raising the hopes of the prisoner for no purpose. On the other hand, as the House of Lords made clear, where the Board is in doubt as to whether an oral hearing may be of assistance, the presumption should be in favour of it.”

That said, it is plain that the Court recognised the need for flexibility in the Parole Board’s approach to cases that do not have a realistic prospect of success or which do not turn on a dispute of fact, e.g. see the dicta of Moses LJ at [54 & 55]:

“...But it is not possible to be dogmatic where there is no such dispute... the failure of the Board and of the courts to achieve the certainty which those who have to make the decisions and those who are affected by them would like to see, is striking and, in my view, desirable. Flexibility is important and, whilst tiresome to the administrator, may be of assistance to a prisoner or to his advisers.”

Moses LJ thus noted that the Parole Board’s policy would have to be amended to reflect the need for flexibility, particularly given the apparent contradiction within its policy as to oral hearings only being granted to prisoners with a realistic prospect of success.

He added [56]:

“In considering whether there is no realistic prospect of success, the Board must always bear in mind the power of oral persuasion. Of course justice for prisoners demands that the time and resources of the Board should not be wasted where an oral hearing is unnecessary for a just conclusion. Whilst a judgment that there is no realistic prospect that an oral hearing could affect the Board's conclusion is the only test which has been devised, I wish to underline the importance, which Sedley LJ demonstrates, of appreciating the effect of oral persuasion and discussion on cases hitherto believed to be "open and shut"”.

Sedley LJ also gave an example of a case where an oral hearing would be of value, notwithstanding the absence of a dispute of fact [62]:

“I do not doubt that there are cases where an oral hearing before the Parole Board has real value in, for example, enabling a panel which includes a psychologist or psychiatrist to discuss the prisoner's prospects open-mindedly with the responsible professionals, quite irrespective of whether there are evidential conflicts. There must also be cases where the professionals do not agree among themselves and where a hearing is all but inevitable if the Board is to engage in a productive discussion and reach a measured judgment.”

Court’s approach to the Parole Board’s decisions on oral hearings

The Court agreed that it is ultimately for the Court to assess fairness; e.g. see Sedley LJ at [58]:

“...whether a step or decision was unfair is an appellate question, not a review question, and so is not to be approached by simply asking whether it went outside a broad band of discretion.”

In other words, the Court must exercise its own primary judgment in determining whether an oral hearing is required as a matter of fairness; see the dicta of Moses LJ at [53]:

“...the courts' decisions as to the fairness of a lower tribunal's procedure should not be couched in terms which suggest that the court is applying a Wednesbury test. These appellants were understandably concerned at the way Langstaff J expressed himself...this appeal should avoid the risk of judges giving the impression that they have failed to exercise their own primary judgment as to the demands of fairness.”

The Court will proceed on the basis of the facts ascertained by the Parole Board, although it will consider the written materials relied on by the lower tribunal if necessary / appropriate; Sedley LJ at [59]:

"...Many such decisions turn on facts which it was for the tribunal to ascertain and to evaluate. If and insofar as such findings are recorded by the lower tribunal, they will be the basis on which the appellate court gauges the fairness of what the tribunal decided to do...But it will also often be the case that what the lower tribunal has been considering is part of a written record which an appellate court can if necessary examine for itself."

The Court recognised that the facts ascertained by the Parole Board will have been informed by the Board’s expertise in risk assessment; Carnwath LJ at [42]:

“...the question of fairness should be judged [by the Court] in the context of the circumstances identified and evaluated by the Board, including their appraisal of the material already available, formed with the expertise which the court does not share, and their resulting assessment of what will be needed to satisfy it that release will not put the public at risk.”

Comment

These judgments are important as they confirm that:

(a)the Parole Board must ensure that it is adopting a flexible approach to cases that do not disclose a dispute of fact, or which appear not to have a realistic prospect of success; although the Board is entitled to take into account whether there is a realistic prospect of its judgment being affected by an oral hearing; and

(b) that it is for the Court to decide for itself whether an oral hearing is required as a matter of fairness.

It is likely therefore that the Parole Board’s policy in respect of oral hearings will have to be changed as a consequence. Indeed it is of note that during argument, the Court expressed concern that the Parole Board was relying on ‘guidance’ that was not available in the public domain; thus indicating that it would be preferable for such guidance to be made available to all; see [24].

Furthermore, Judges hearing judicial review challenges against the Parole Board will need to exercise their own primary judgment as to what fairness requires in a particular case.

It should be noted that the Appellants have applied for permission to appeal to the Supreme Court on issue i); i.e. the criteria to be adopted by the Parole Board in deciding whether to grant an oral hearing.

Mr. Osborn and Mr. Booth were represented by Hugh Southey QC of Tooks Chambers and Vijay Jagadesham of Garden Court North; instructed by Ranjit Kaur Sandhu of Harrison Bundey Solicitors and Jen Regan of Scott-Moncrief, Harbour and Sinclair Solicitors .

Quick links

The appellants have now been granted permission to appeal to the Supreme Court on issue (i). See more details in the new story below.

> 5/1/12 Permission to appeal to Supreme Court in Parole Board oral hearing challenge