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b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. Ratio |
That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment prod... |
Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. Ratio |
c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. Ratio |
d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a paper decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper ... |
In order to act fairly, the board should consider whether its iii) independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. Ratio |
iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. Ratio |
v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. Ratio |
vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. Ratio |
When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. Ratio |
vii) The board must be, and appear to be, independent and impartial. Ratio |
It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. Ratio |
viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. Ratio |
ix) The boards decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoners release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoners treatment needs or the offending b... |
x) Paper decisions made by single member panels of the board are provisional. Ratio |
The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. Ratio |
In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. Ratio |
xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not. Ratio |
xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Ratio |
Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. Ratio |
xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty. Ratio |
The legislative framework STA |
Section 239(2) of the Criminal Justice Act 2003 (the 2003 Act) provides that it is the duty of the board to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners. STA |
This includes advising on licence conditions: R (Brooke) v Parole Board [2008] EWCA Civ 29; [2008] 1 WLR 1950, para 47. STA |
Section 239(5) permits the Secretary of State to make rules with respect to the proceedings of the board. STA |
Section 239(6) permits the Secretary of State to give the board directions as to the matters to be taken into account by it in discharging its functions under Chapter 6 of Part 12 of the 2003 Act, which concerns the release, licences and recall of determinate sentence prisoners, or under Chapter II of Part II of the Cr... |
It will be necessary to return to the rules and directions which were in force at the material time. STA |
Determinate sentence prisoners who are serving a sentence of 12 months or more are automatically entitled to be released on licence at the halfway point in their sentence: section 244 of the 2003 Act. STA |
Section 254 confers on the Secretary of State the power to revoke the licence and to recall the prisoner to prison. STA |
There is no obligation on the Secretary of State to consult the board before doing so, and any direct challenge to the Secretary of States decision to revoke a licence can only be made by way of an application for judicial review. STA |
At the material time, section 255C(4) of the 2003 Act (as inserted by the Criminal Justice and Immigration Act 2008) imposed a duty upon the Secretary of State to refer the recalled prisoners case to the board. STA |
Section 255C(5) provided that, where on such a reference the board recommended the prisoners immediate release, the Secretary of State must give effect to that recommendation. STA |
In relation to indeterminate sentence prisoners, section 28(5) of the 1997 Act imposes a duty on the Secretary of State to release the prisoner as soon as he has served the tariff part of his sentence and the board has directed his release. STA |
Section 28(6) prohibits the board from giving such a direction unless it is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined. STA |
The Rules STA |
The rules in force at the material time were the Parole Board Rules 2004 as amended by the Parole Board (Amendment) Rules 2009 (the rules): those currently in force, the Parole Board Rules 2011 (SI 2011/2947), contain analogous provisions. Ratio |
The rules applied where an indeterminate sentence prisoners case was referred to the board for a decision as to whether he should be released. Ratio |
It is common ground between the parties that they had no application where a determinate sentence prisoners case was referred, following his recall, for a decision as to whether he should be re-released. Ratio |
The rules therefore applied in the cases of the appellants Booth and Reilly, but not in the case of the appellant Osborn. Ratio |
The rules made provision for the listing of the prisoners case, following which the Secretary of State was required to serve on the board, and on the prisoner or his representative, specified information and reports. Ratio |
The prisoner was then required to serve on the board and on the Secretary of State any representations about his case that he wished to make. Ratio |
Rule 11 provided for the initial consideration of a prisoners case by a single member of the board, without a hearing. STA |
It provided: 11. STA |
(1) Within 14 weeks of the case being listed, a single member panel shall consider the prisoners case (sic) without a hearing. STA |
11. STA |
(2) The single member panel must either (a) decide that the case should receive further consideration by an oral panel, or (b) make a provisional decision that the prisoner is unsuitable. STA |
11. STA |
(3) The decision of the single member panel shall be recorded in writing with reasons, and shall be provided to the parties within a week of the date of the decision. STA |
It was implicit in rule 11(2) that an oral hearing would always be held before an indeterminate sentence prisoner was released. STA |
Rule 12 was headed Provisional decision against release, and applied where a decision was taken under rule 11(2)(b). STA |
It provided: 12. STA |
(1) In any case where the single member panel has made a provisional decision under rule 11(2)(b) that the prisoner is unsuitable for release, the prisoner may request an oral panel to give consideration to his case with a hearing. STA |
12. STA |
(2) Where the prisoner does so request consideration of his case with a hearing, he must serve notice to that effect, giving full reasons for the request on the board and the Secretary of State within 19 weeks of the case being listed. STA |
12. STA |
(3) If no notice has been served in accordance with paragraph (2) after the expiry of the period permitted by that paragraph, the provisional decision shall become final and shall be provided to the parties within 20 weeks of the case being listed. STA |
The rules were silent as to how requests for an oral hearing were to be decided and by whom. STA |
Where a decision was made under rule 11(2)(a) or a hearing was ordered pursuant to a request under rule 12(2), Part 4 of the rules applied. Ratio |
Provision was made for such matters as the prisoners attendance at the hearing, the submission of documentary evidence and the calling of witnesses. Ratio |
In relation to the procedure to be followed at the hearing, rule 19 provided that the panel was required so far as possible to make its own enquiries in order to satisfy itself of the level of risk of the prisoner. Ratio |
The parties were entitled to appear and be heard and to take such part in the proceedings as the panel thought fit. Ratio |
They were permitted to hear each others evidence, put questions to each other, call any witnesses whom the board had authorised to give evidence, and put questions to any witness or other person appearing before the panel. Ratio |
After all the evidence had been given, the prisoner was to be given a further opportunity to address the panel. Ratio |
Under the rules as introduced in 2004, an indeterminate sentence prisoner was entitled under rule 12(1), in any case where a single member panel had made a provisional decision under rule 11(2)(b), to require a three member oral panel to give consideration to his case with a hearing. Ratio |
This right was taken away by the Parole Board (Amendment) Rules 2009 (SI 2009/408), which came into effect on 1 April 2009. Ratio |
There is a difference between the position in England and Wales following that amendment and the position in the rest of the United Kingdom, where indeterminate sentence prisoners (and some other categories of prisoner) remain entitled to an oral hearing: see the Parole Board (Scotland) Rules 2001 (SSI 2001/1315) rule ... |
The directions Ratio |
At the time when the appellants cases were considered by the board, the directions given by the Secretary of State in relation to determinate sentence prisoners recalled to prison, such as the appellant Osborn, stated that the assumption is that the board will seek to re-release the prisoner or set a future re- release... |
The board was required to consider a number of matters, including the likelihood of the offender complying with the requirements of probation supervision. FAC |
In assessing that likelihood, the board was required to consider the offenders conduct during the licence period to date. FAC |
In relation to indeterminate sentence prisoners such as the appellants Booth and Reilly, the board was required by the relevant directions to consider a number of matters, including whether the prisoner had made positive and successful efforts to address the attitudes and behavioural problems which led to the commissio... |
Other directions assumed that the board had the power to recommend the transfer of indeterminate sentence prisoners to open conditions, and to give directions relating to the exercise of that power. FAC |
Practice determinate sentence prisoners recalled to custody FAC |
In relation to determinate sentence prisoners recalled to custody, such as the appellant Osborn, the practice of the board, following the decision of the House of Lords in R (West) v Parole Board [2005] UKHL 1; [2005] 1 WLR 350, was to grant an oral hearing to any prisoner who requested one following a provisional deci... |
That practice changed in February 2007, when the board published a notice stating that it would require reasons from the prisoner when applying for an oral hearing, and would grant such applications only where it appeared to the board that a hearing was necessary and fell within the ambit of the House of Lords ruling. ... |
The practice followed by the board in relation to such prisoners is set out in unpublished guidance to panels. Ratio |
That guidance states: All recalled prisoners are initially considered by a paper panel. Ratio |
That panel can decide whether to send the case to an oral hearing. Ratio |
An oral hearing will normally be granted in three sets of circumstances: 1. where the prisoner disputes the circumstances of the recall and the facts of the recall are central to the question of risk and re-release; or 2. Ratio |
where the prisoner argues that the recall incident was not justified for some reason, or was not as serious as alleged and this affects the assessment of risk; 3. Ratio |
any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. Ratio |
Where the prisoner asks for an oral hearing, the panel should: Consider whether it is possible to decide the issues and release on the papers; Otherwise, send the case for an oral hearing Where a prisoner submits representations challenging his or her recall the panel should: Consider whether it is possible to decide t... |
This should only be done when the panel is unable to decide the issues on the papers and concludes that they can only be determined after hearing oral evidence. Ratio |
(emphasis in original) Ratio |
Practice indeterminate sentence prisoners Ratio |
Historically, as I have explained, indeterminate sentence prisoners were entitled to an oral hearing. Ratio |
Following the amendment of the rules in 2009, guidance was issued which was in force at the material time. Ratio |
It stated: Decisions on oral hearings will be taken by the ICM [Intensive Case Management] member. Ratio |
The member will consider this in all cases, regardless of whether the prisoner has requested one. Ratio |
An oral hearing will normally be granted in two sets of circumstances: 1. Ratio |
Where the ICM member considers there is a realistic prospect of release or a move to open conditions; or 2. Ratio |
In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses. Ratio |
This would include a case where a progressive move is not a realistic outcome, but where live evidence is needed to determine the risk factors. Ratio |
It is envisaged that this will be a rare step to take and would normally only be necessary where experts disagreed about a risk factor; for example, whether or not there was a sexual element to an offence that needed exploring. Ratio |
It is only intended to apply this principle where there is a dispute about whether an issue is a risk factor at all, not necessarily whether it has been addressed or not. Ratio |
An oral hearing will not be granted where there is no realistic prospect of release or open conditions, but where such outcomes are requested by the prisoner, detailed reasons will be given for refusing, in particular where the prisoner is already in category C or D. Ratio |
This guidance is thoroughly illogical. Ratio |
First, if an oral hearing will normally be granted in two sets of circumstances, the first being that there is a realistic prospect of release or a move to open conditions, it cannot be correct to say that an oral hearing will not be granted where there is no prospect of release or open conditions: if that were true, t... |
Secondly, if, applying the guidance, the board has been able to conclude that there is no realistic prospect of release or a move to open conditions, then it is difficult to see how it can nevertheless consider that the assessment of risk requires live evidence. Ratio |
The facts Michael Osborn FAC |
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