Prison JR: Parole Board’s refusal to grant an oral hearing  

R (on the application of Osborn) v The Parole Board [2010] EWHC 580 >judgment

In this case the Claimant relied on the fact that the authorities had raised a question about his mental health status; as well as the disputes of fact that arose from the recall. The Claimant pointed out that Strasbourg jurisprudence supported his request for an oral hearing and, in particular, precluded the Court and Parole Board from engaging in ‘speculative assumption’ as to the outcome of any oral hearing.

Langstaff J held that a question arising as to someone’s mental health status may well require an oral hearing, although he took the view that a psychiatric opinion would be required first (which had not been obtained in the Claimant’s case); [35]:

“...Where a claimant raises the fact that he may be suffering from some mental illness, there is as yet no issue about it for the Board to determine: assuming the matter to be credibly raised, as to which the threshold will be low, the first step in fairness must be to have an expert examine the prisoner, and reach a view. It is not difficult to see that at that stage the view may be heavily influenced by that which the prisoner has said, or that there may be a difference of view between the prisoner and the psychiatrist or, for that matter, between different experts. In such a situation, where it is relevant to an assessment of risk, an oral hearing may well be called for...”

Langstaff J also recognised the value of oral hearings, even where this might not affect the overall outcome of the Parole Board’s decision; [29]:

“Presence at an oral hearing, either personally or by a representative, may enable a prisoner to understand what, in reality, are the matters which most concern the Board, and enable him to respond immediately to meet those concerns. Even if his presence and participation may not change the eventual decision as to whether or not the Board should recommend release, it may nonetheless have a significant value in preparing the ground for subsequent Parole Board reviews of the prisoner’s case, so that the starting point of the Board’s consideration in a later case is less adverse to, or better informed about the prisoner. Where matters of fact are held against a prisoner (as, for instance, whether he had or had not actually broken the terms of his licence) and those facts are open to reasonable dispute, then plainly an oral hearing is likely to be required (even though the validity of the recall is not for the Parole Board to question directly). So too may be the case where the validity of an excuse for a particular breach is material to an evaluation of its severity, and whether the fact there has been that breach implies that if re-released there may be other such breaches with a consequent risk to the public, or whether in the light of the explanation tendered it can be seen that this is less likely. As Lord Slynn said (Smith and West, paragraph 50) where an officer’s assessment needs further probing, that too may be a situation where fairness may well require an oral hearing.”

Nonetheless, Langstaff J indicated that many cases will not require an oral hearing, and took the view that an oral hearing in this Claimant’s case would not have made a difference; see [31 & 36].

Comment

Despite the rare positive parts of this judgment, which have been quoted above for the assistance of practitioners, this judgment is concerning. It clearly seeks to restrict the guidance given by the House of Lords in Smith and West, where their Lordships sought to establish a wider basis for the grant of oral hearings; see Smith and West[35 & 68].

The judgment’s references to clear disputations of fact, or that “there must be something which the oral nature of such a hearing can contribute by reason of the fact that it is oral...” connote a much stricter test than that envisaged by their Lordships; for example, Lord Bingham used the words “may well” at [31] in Smith and West, indicating that it need not be certain, definite or even reasonably likely that an oral hearing will contribute to achieving a just decision.

The restrictions in the judgment go beyond the clear and careful guidance of their Lordships in Smith and West, which was expressed in broad terms.

Furthermore, the requirement for a psychiatric assessment prior to any Parole Board paper decision is unrealistic and inconsistent with Strasbourg and domestic jurisprudence.

Mr. Osborn will seek to take his case to the Court of Appeal, who originally granted permission for judicial review in his case.

Mr. Osborn was represented by Vijay Jagadesham of Garden Court North Chambers and Ranjit Kaur of Harrison Bundey Solicitors .