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20 DEC 2013

Osborn v The Parole Board; Booth v The Parole Board; In the matter of an application of James Clyde Reilly for Judicial Review (Northern Ireland) [2013] UKSC 61; (2013) PLLR 127

Prisoners - application for parole - decision on the papers - right to request an oral hearing - Parole Board guidance - circumstances in which an oral hearing request should be granted - procedural fairness at common law - article 5(4) ECHR.

The Parole Board should hold an oral hearing whenever fairness to the prisoner requires it. It is impossible to define the circumstances in which fairness would require a hearing, but the Court offered guidance on some of the relevant factors.

9 October 2013

Supreme Court

Lord Neuberger (President of the Supreme Court), Lady Hale (Deputy President of the Supreme Court), Lord Kerr, Lord Clarke and Lord Reed

(1)        The appellants were prisoners who had been refused oral hearings by the Parole Board, and all sought judicial review of the refusal decisions. The Court of Appeal upheld the dismissal of the first appellant's challenge and the refusal to grant the second appellant permission to apply for judicial review. The Court of Appeal in Northern Ireland followed the approach of the Court Appeal, and allowed the appeal against the decision to quash the refusal to grant the third appellant an oral hearing.  All three appealed on the grounds that the decisions breached the procedural fairness requirements of Article 5(4) ECHR.

(2)        Lord Reed (with whom the rest of the Court agreed) held: (1) that article 5(4) ECHR alone was not the correct basis on which to bring the appeals. The domestic common law set out the detailed requirements of procedural fairness, and gave effect to the high level requirements of the European legislation. Compliance with the domestic law would usually ensure compliance with the ECHR, but it was the former against which public bodies' performance should be assessed. (2) When considering common law requirements of procedural fairness, regard should be have to three preliminary matters. The court must determine whether the procedure was fair, not the reasonableness of the decision. The purpose of procedural fairness is to ensure those affected by the decision have an opportunity to participate, as well as improving the chances of the decision-maker reaching the right decision. Cost is not a conclusive reason not to hold an oral hearing. (3) The Board should hold an oral hearing where fairness to the prisoner required such a hearing, taking account of the facts of the case and the importance of what is at stake [2]. The Court gave guidance as to the factors to be considered by the Parole Board when deciding whether the requirements of fairness make it necessary to hold an oral hearing:

(i)         Would the Board's assessment of risk benefit from closer examination at an oral hearing?

(ii)        The purpose of an oral hearing includes giving the prisoner the opportunity to participate in the decision-making process.

(iii)       Fairness cannot be assessed according to the prisoner's prospects of securing a progressive move.

(iv)       The Board should consider that a recalled prisoner has been deprived of their freedom, and that anxious scrutiny of the level of risk posed by an indeterminate sentence prisoner who has passed their tariff point is required.

(v)        The Board must be and appear to be independent and impartial.

(vi)       Resource issues are not an appropriate reason for refusing to hold an oral hearing.

(vii)      The Board's decision extends beyond its conclusion as to whether to recommend a progressive move.

(viii)     The right to request an oral hearing of a provisional paper decision is not a right of appeal. The applicant only needs to show that an oral hearing would be appropriate.

(ix)       In cases of doubt, a Board should consider granting an oral hearing request.

             (4) The Parole Board's decisions to refuse the appellants' requests for oral hearings were in breach of the common law requirements of procedural fairness, and Article 5(4) ECHR. In particular, there were disputes around some facts that had been accorded significant importance by the single member panel; the assessments of risk would have benefitted from oral examination of the psychologist's evidence; and the Board had wrongly characterised the oral hearing applications as ‘appeals'.

Appeals allowed

Key paragraphs

[1] - [2] - Summary of conclusions

[3] - [5] - The legislative framework

[6] - [11] - The rules

[12] - [13] - The directions

[14] - [15] - Practice - determinate sentence prisoners recalled to custody

[16] - [17] - Practice - indeterminate sentence prisoners

[18] - [29] - The facts - Michael Osborn

[30] - [42] - The facts - John Booth

[34] - [53] - The facts - James Reilly

[54] - [63] - Domestic law and convention rights

[64] - [72] - Procedural fairness at common law - the preliminary matters

[73] - [79] - R (West) v Parole Board

[80] - [96] - The circumstances in which fairness requires an oral hearing

[97] - [100] - The present appeals

[101] - Convention rights

[102] - [113] - Article 5(4) and the present appeals

[114] - [115] - Damages


[116] - Conclusion

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