Osborn & Anor v The Parole Board

In these two linked cases, the claimants seek judicial review of decisions of the Parole Board to refuse oral hearings. The first (Osborn) relates to recall following release on licence under a determinate sentence. It is an appeal from the judgment of Langstaff J on the substantive application for judicial review. The second (Booth) relates to the review of an indeterminate sentence. It is technically the first substantive hearing of the judicial review application, permission having been refused by Langstaff J, but granted in this court by Maurice Kay LJ. With respect to Mr Manknell, who sought to persuade us otherwise, I do not consider that this procedural difference should affect our approach to the issues.

Mr Osborn was born in 1972. Before he was 18, he had convictions for assault occasioning actual bodily harm, threatening behaviour and the possession of an offensive weapon. In 2006 he was convicted of putting people in fear of violence by harassment and of the possession of an imitation firearm (which he was alleged to have “brandished” at the home of his estranged wife). He was sentenced to 6 years imprisonment.

The custodial part of that sentence expired on the 20th February 2009, when he was released. He was recalled on the same day. He broke his conditions of release by arriving 20 minutes late at his hostel, having taken a detour which he did not disclose to the hostel. He blamed his lateness on traffic, whereas in fact he had diverted from a direct route to the hostel in order to visit an address at 19 Hilltop View in Handsacre. On 24^th February he was told that he had been recalled on two counts: failure to report to the hostel without delay, and making a detour such that he did not achieve his first hostel curfew time requirement. He was also informed that, having regard to his offending history, and the behaviour described in the breach report, the Secretary of State was not satisfied that it was right for him to remain on licence. He was invited to make representations.

The breach report by the offender manager, Mr Holsey, dated 6th March, recorded that the claimant had before release indicated his “absolute refusal” to comply with the requirements of his licence, and stated that he would “disappear for the weekend post-release” with his partner and their son, although he understood the inevitability of ensuing recall. He had scribbled through some of his licence conditions when presented with them in the week before his release. Mr Holsey had "information received" that on the day of his release the claimant had stated his intent not to meet with his offender manager. When reminded that he could not have access to firearms, he was reported to have said "not for another 2 hours", and was reported to have said he would be back in prison shortly after he had done what he needed to do. Mr Holsey commented:

“Obviously this information and his behaviour on the day gave rise for serious concern as to the imminent risk of harm that this man may present and questioned as to how confidently such could be managed in the community.”

Shortly before he left the address in Handsacre he had telephoned the hostel manager to tell her that he would be late saying (falsely) that he was on the A38. He also told her that he had a multi-personality disorder and, if he were placed with someone else, she would "live to regret it”.

The report noted that he was at a medium risk of general re-offending, but that, if he did re-offend, there would be an imminent risk of serious harm with a serious impact upon any likely victim. It added that, in view of his statement that he had been diagnosed as having a multiple personality disorder, it was “crucial” that before being considered for eventual release, he should undertake a full psychiatric assessment. Mr Holsey did not recommend release.

In a letter dated 6^th April 2009 (surprisingly, not mentioned in the judge’s account of the facts), Mr Osborn’s solicitors commented in detail on the grounds for recall, and requested re-release. The letter referred to a four page hand-written note by Mr Osborn explaining his reasons for arriving late. The notes include an elaborate account of the events of that day, including delays in the time of actual release leading to delay in arriving at his fiancée’s sister’s house, and further problems caused by what his solicitors described as “the erratic monitoring and pursuance by the police surveillance team” leading to the de-tour which made him late. The solicitors’ letter noted that Mr Holsey’s report had only been received that day, and that they had not been able to obtain Mr Osborn’s comments on his alleged statements of intention not to comply with the licence conditions, but it added that Mr Osborn suffered from mental health problems of which the probation service were aware. The letter accepted that Mr Osborn had expressed “initial concerns” in respect of some of the conditions, but commented that he had now been advised of the proper channels for challenging such conditions, and understood that they were binding. He had demonstrated in custody that he could behave well, and a willingness to change, and he could be expected therefore to comply with his licence.

In its decision dated 22^nd April 2009, the Parole Board concluded:

"The panel considered the benefits to Mr Osborn of addressing his offending behaviour within the community. Against this, the panel balanced the seriousness of the index offences, his history of previous convictions (including violence) and breach of trust, the immediate breakdown of supervision under the current licence, Mr Osborn's apparent unwillingness to comply with the requirements of licence supervision, the lack of information on his current mental health status and the recommendation that a full psychiatric assessment should be carried out prior to any re-release, the lack of confirmed accommodation for re-release, and the very high risk of harm should he re-offend. The assessment of risk is such that it cannot be safely managed within the community at present. The panel therefore makes no recommendation regarding re-release."

On 28th April 2009 the claimant’s solicitor wrote requesting an urgent oral hearing, and describing the Parole Board’s finding as “irrational”. It was said that the decision made no reference to Mr Osborn’s account of the events of the day of his release. It complained that the Board had relied on information not disclosed to them –

“for example, details of our client’s intention to abscond, not to comply with licence conditions, not to meet with his offender manager, access to firearms, hostel’s future acceptance among others”

This appears to be a reference to Mr Holsey’s report. If so, it is unfortunate that the writer seems to have forgotten that it had been referred to in their previous letter, with an indication that they needed time to take instructions on it. The letter of 28^th April does not indicate what if anything of Mr Holsey’s report was disputed. The letter went on, however, to ask for a direction for seven named witnesses to attend an oral hearing, and for specific documents to be supplied. As the judge commented, the letter –

“… gave no indication as to what was in dispute, if anything, upon which those witnesses' evidence or those documents would bear”.

The Parole Board refused the request for an oral hearing. The reasons given were:

“Michael Osborn's solicitors' representations dated [27/5/09 and] 28/4/09 dispute parts of the behaviour on the day of release which led to recall (e.g. Mr Osborn's detour) as well as ‘brandishing a firearm’ in the index offences. This panel has carefully considered the full dossier and concludes that the disputed facts are not essential either to the recall decision or the panel's risk assessment of the panel on 22/04/09: Mr Osborn's denial of the index offences was known to the panel already.” (The reference to representations of 27/5/09 appears to be a mistake. The only letter was on 28/4/09.)

Before the judge there was initially an issue whether the claimant had been made aware of the matters in Mr Holsey’s report, but the judge recorded that he had seen it and had time to respond. The judge recorded that, despite having had “every opportunity” to do so, Mr Osborn had not disputed the contents of the report “in any meaningful way” prior to the hearing before him; this view was not altered by reference to material relied on by counsel in post-hearing submissions (para 15).

In this connection I should refer also to the judge’s comments on the third submission on behalf Mr Osborn:

22.

Thirdly, the claimant contended that he could explain his detour en-route to the hostel (he did so in part in his written representations to the Board), and to incarcerate him until the conclusion of his determinate sentence would be disproportionate to him having delayed for 20 minutes in arriving at his hostel. Finally, he denied (it appears, for the first time on paper) that he intended to breach his licence conditions, to abscond, or that he implied he had access to firearms.

23.

As to this latter point, it is axiomatic that the decision must be judged on the facts and material available to the decision maker at the time.”

The judge concluded that the Board was entitled to take the view that the facts were “only minimally in contention”. He said:

“None was disputed before that time. Nor was any matter of relevant fact on which the Board relied known to be disputed before the Board took the decision it did to refuse an oral hearing. Thus this was not a case in which there was a material dispute of fact relevant to, though not necessarily determinative of, the risk relevant to release to which the cases refer.” (para 31)

He continued (para 32-3):

“For fairness to demand an oral hearing there must be something which the oral nature of such a hearing can contribute by reason of the fact that it is oral and held in his presence or that of his representatives which is of relevance to that hearing or to future potential hearings...”

The matters raised in the letter of 28^th April 2009 were “peripheral” to the decision, and the bulk of the letter indicated a desire to ask questions about matters of fact which were not in dispute, and did not have any relevance to the risk to the public on re-release. On that basis the Board’s refusal to hold an oral hearing was not wrong in law.

There was an alternative argument that, the mental state of the claimant having been put in issue, the Board needed an oral hearing to make their own assessment. The judge rejected the submission that an oral hearing would be necessary “merely because the prisoner claims to be suffering from a mental state”.

“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. But it is not requisite where, as here, the matter is raised at or about the time of release and recall by the prisoner, and there has yet to be the necessary first step of investigation and report by a psychiatrist. The Board's reasoning was not to the effect that Mr Osborn's psychiatric state was such that it was unsafe to release him. It was that the Board lacked information about the current mental health status…” (para 35)

He concluded that reasons for refusing an oral hearing were “not irrational, unlawful nor wholly unreasonable”, and accordingly refused judicial review (para 38).

In September 1981, Mr Booth was convicted of the attempted murder by strangulation of an elderly lady in a train compartment. He was diagnosed as having serious psychopathic tendencies. He was sentenced to life imprisonment, with a minimum term of six and a half years. He has, in the event, served almost 30 years in actual custody, save for a brief period of a few months in 1993. Over that period he has been subject to a number of reviews by the Parole Board, some involving oral hearings. The most recent decision, now under challenge, was reached without an oral hearing.

The Board had before it a Summary of Previous Parole Board Reports, which referred to previous considerations since 2002, including:

In October 2009 the Parole Board considered his case on the papers and made the decision now under challenge. They had before them a dossier including reports from (among others) the Deputy Lifer Manager, his Offender Supervisor, and a psychologist. None was able to recommend release or a progressive move to open conditions at that time. Having considered the dossier, a single Parole Board member made the decision dated 21st October 2009 not to direct the Claimant’s release or to recommend his transfer to open conditions.

On 17th November 2009 Mr Booth’s solicitors wrote requesting an oral hearing. They pointed out that his probation officer was arranging for him to visit Box Tree Cottage, which had psychiatric support, and they were likely to be asking for direct release there. They explained that, since his last review, he had been working with a psychiatrist in prison on a one-to-one basis, and that he had thus “completed work to reduce his risk since his last review”. Under the heading “huge errors on fact”, the letter pointed out that repeated references in the reports to an incident in 1999 when he “threw a cup of tea over a nurse” had been taken out of proportion (it had been a paper cup). The letter pointed to the complexity of the case, and concluded:

“He will require psychiatric intervention when released, and this needs to be considered and addressed in an oral hearing.”

In its decision dated 19 November 2009 the Board refused his request, stating that the ICM assessor’s duty was to consider whether an oral hearing “would make any material difference to the paper hearing decision”:

“The criteria for granting an oral hearing is where the member considers there is a realistic chance of release or open conditions and where the assessment of risk requires live evidence to determine the risk factors. In Mr Booth’s case the offender manager, the offender supervisor and the prison psychologist all agree on the current risk factors which are thinking skills deficits and anger management issues an that interventions need to be completed to address these risk factors. They all conclude that Mr Booth is unsuitable for release or open conditions. There is no evidence or argument put forward in the representations which persuades the ICM assessor that an oral hearing is justified.”

(The reference to “criteria” is to a “Policy and Guidance” document published by the Parole Board in August 2009, in connection with amendments to the rules which introduced a discretion in relation to the grant of an oral hearing for lifers.)

A letter before action from Mr Booth solicitors dated 29th January 2010 renewed his request for an oral hearing. It repeated the reference to “huge errors of fact”, and to his one-to-one work with a psychiatrist, and compared his troubled history since the offence with his recent progress at Wymott since March 2007, including two escorted absences.

The Board repeated its refusal in a letter on 5th February 2010. It noted that there was no dispute of the report of a forensic psychologist that he should remain in closed conditions; the tea-cup incident was “rather tenuous when seen in the light of the Board’s decision as a whole”. It concluded:

“Mr Booth is given credit for making some progress but that is not the same as saying that he could be ready for release. The essence of this review is a current risk assessment based on reports, none of which recommend release or transfer to open conditions, and which highlight a number of areas of concern which Mr Booth needs to address before progressing. Your representations do not touch on these issues in any way and there is clearly no case for an oral hearing.”

Langstaff J refused permission to apply for judicial review:

“18… Here, it seems to me that the Parole Board were fully entitled to take the view that, in the particular circumstances of this case, there was no realistic likelihood of any immediate release or transfer to open conditions. None of the report writers recommended it. The dispute to which Mr Jagadesham has referred was one between a Psychiatric Services Manager, who took a less optimistic view even than did the Psychologist as to whether the claimant would ever engage with the Thinking Skills course in his advantage.

19.

There is absolutely nothing in the points made by the solicitors about the claimant being a recall prisoner, nor is there any possible useful substance in the dispute as to the nature of the cup and contents, to which oral evidence would be necessary as a matter of fairness. ”

Although the statutory provisions differ, it is common ground that the substantive issue for the Board in each case was the same, that is whether continued detention was “necessary for the protection of the public”. We are concerned solely with the procedure by which the decision was reached.

We were shown three “policy” statements emanating from the Board, two published, and one unpublished from a Member’s Handbook. Apart from providing the source of the “criteria” mentioned in Booth it is not suggested that these assist materially in determining the legality of the decisions made in these cases. It is accepted that they may need revision in the light of our judgments. We would only observe that a better term might be “practice guidance”, since the issue is not so much one of “policy” as procedural fairness under the law; and that, if such statements are used to guide practice, it is desirable that they should be available also to prisoners and their advisers.

Two issues are said to arise:

We have been referred to a number of Strasbourg and domestic authorities on both issues. I hope I shall be forgiven for not undertaking a detailed review, since the law appears to me reasonably settled.

The first issue was fully considered by the House of Lords in R (Smith) v Parole Board (No 2) [2005] 1 WLR 350. The guidance emerging from the speeches was in my view accurately summarised in the passages quoted by Latham LJ in the Divisional Court in R(O’Connell) v Parole Board [2007] EWHC 2591:

“21... The question of whether or not an oral hearing will be necessary in any given case will depend upon the facts. I consider that the position in this respect under article 5(4) is no different from the position at common law. This appears to me to be the view taken by the House of Lords in [Smith]. In that case, Lord Bingham said, at para 35:

‘The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing. But I do not think the duty is as constricted as has hitherto been held and assumed. Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts. Whilst the board's task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or another) by exposure to the prisoner or the questioning of those who have dealt with him.’

22 Lord Slynn said, at para 50:

‘There is no absolute rule that there must be an oral hearing automatically in every case. Where, however, there are issues of fact, or where explanations are put forward to justify actions said to be a breach of licence conditions, or where the officer's assessment needs further probing, fairness may well require that there should be an oral hearing. If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the board should be predisposed in favour of an oral hearing. On any view the applicant clearly says he does not want an oral hearing then there need not be such a hearing unless the board itself feels exceptionally that fairness requires one.”

For completeness, I would add Lord Hope’s comment:

“I agree therefore that the common law test of procedural fairness requires that the Board re-examine its approach. A screening system needs to be put in place which identifies those cases where the prisoner seeks to challenge the truth or accuracy of the allegations that led to his recall, or seeks to provide an explanation for them which was not taken into account or was disputed when his recall was recommended by his supervising probation officer. Consideration then needs to be given to the question whether it is necessary to resolve these issues before a final decision is made as to whether or not the prisoner is suitable for release. If it is, an oral hearing should be the norm rather than the exception.” (para 62)

It needs also to be borne in mind that since the Smith decision there has been a significant change in the practice of the Board. At that time oral hearings were wholly exceptional. Some of the comments in the speeches, and in later cases, need to be read with that in mind. Thus, for example, in Roose v Parole Board [2010] EWHC 1780 (Admin), the court referred to Lord Hope’s description (Smith para 66) of the Board’s “long-standing institutional reluctance” to deal with cases orally. However, this may not fairly reflect the changes in the intervening five years. We were shown some more recent figures. They need to be interpreted with some care because of the difficulty of extracting figures on a consistent basis. In respect of indeterminate sentence reviews, the changes to the rules have had the effect that in respect of any review where it is not considered that the offender is unsuitable for release, should be sent to an oral hearing. The Board also has a policy of directing oral hearings wherever the offender is considered suitable for a progressive move to open conditions. In respect of determinate sentence recalls, the proportion currently sent for oral hearing is much smaller, but still significant (291 out of 1,598 application in 2009-10).

In this court, Mr Southey has put weight on the approach of the Strasbourg court, by reference to two cases in particular: Hussain v UK (1996) 22 EHRR 1; Waite v UK (2003) 36 EHRR 54

In the first, the court said at paras 59–60:

“59.

The court recalls in this context that, in matters of such crucial importance as the deprivation of liberty and where questions arise which involve, for example, an assessment of the applicant's character or mental state, it has held that it may be essential to the proceedings that the applicant be present at an oral hearing.

60.

The court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding his dangerousness, article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.”

These words have been frequently repeated, or paraphrased, in subsequent decisions of the Strasbourg court. There is an apparent difference of emphasis between the first paragraph, which speaks of what “may be essential”, and the second which speaks of what article 5(4) “requires”. The explanation, as I read the passage, is that paragraph 59 is a statement of the general principle; paragraph 60 applies it to the facts of the case (“in a situation such as that of the applicant”). That seems to have been the interpretation of Latham LJ, who in O’Connell set out both paragraphs, but specifically accepted paragraph 59 as accurately stating the position under article 5(4), which he took to be no different from the common law. Accordingly, it does not follow, as Mr Southey would submit, that an oral hearing is “always necessary” where an assessment of dangerousness is being undertaken on the basis of personality and maturity. It depends on the circumstances, including the information already available from previous assessments.

In the second case, the court arguably went a little further. Waite, who was serving an indeterminate sentence, was released, then recalled. He did not dispute the facts which led to his recall. However, he submitted that issues arose concerning his character and mental state which rendered an oral hearing essential to the fairness of the proceedings. The UK Government had argued that the Parole Board would have been “bound to conclude that public protection required that he be confined” (para 55). The court (para 59) said:

"The court is not persuaded by the Government's argument which appears to be based on the speculative assumption that whatever might have occurred at an oral hearing the Board would not have exercised its power to release. Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success of obtaining his release…”(emphasis added)

The remainder of that passage repeats in substance the Hussain formulation.

Basing himself on this passage, Mr Southey argues that the strength of the prisoner’s application “is not relevant” to the question of whether an oral hearing is required.

Again, I think this is reading too much into the language of the judgment. The court was warning against ex post facto “speculation” by the government as to what the Parole Board might have done, or requiring the claimant to show likely success. 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.

When looking at the Strasbourg authorities, it is also right to keep in mind the indirect way in which the Article 5(4) issue arises in domestic law. As Lord Hope explained:

“Procedural fairness is a requirement of the common law. It is not in itself a Convention requirement. But it is built into the Convention requirement because article 5(4) requires that the continuing detention must be judicially supervised and because our own domestic law requires that bodies acting judicially, as a court would act, must conduct their proceedings in a way that is procedurally fair.” (para 75)

Thus, while Strasbourg judgments are of persuasive force, they may not have the same significance as when points under the Convention are directly in issue. Thus, it is noteworthy that, although Lord Bingham cited some of the Strasbourg cases (including Waite) as showing that an oral hearing has been recognised by the European Court as, in some instances, “a fundamental procedural guarantee”, it was to an American authority that he turned for guidance as to the underlying rationale:

“…, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mould his argument to the issues the decision-maker appears to regard as important. Particularly where credibility and veracity are at issue, as they must be in many termination proceedings, written submissions are a wholly unsatisfactory basis for decision…” (per Brennan J, Goldberg v Kelly 397 US 254, 269 (1970)

Thus, the emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision-maker. There is no suggestion that an oral hearing is necessary even where the decision-maker is able fairly to conclude, having regard to the material before it and the issues in play, that an oral hearing can realistically make no difference to its decision.

The second issue is how the court should approach a review of the fairness of a decision of this kind. It is common ground that fairness is ultimately one of law for the court. Both sides relied on R v Panel on Take-overs and Mergers, ex parte Guinness Plc [1990] (CA) 1 QB 146, 184C-E, where Lord Donaldson M.R said (pp. 178–179):

“…I would… accept that whether the rules of natural justice have been transgressed is not to be determined by a Wednesbury test: ‘Could any reasonable tribunal be so unfair?’ On the other hand, fairness must depend in part on the tribunal's view of the general situation and a Wednesbury approach to that view may well be justified. If the tribunal's view should be accepted, then fairness or unfairness falls to be judged on the basis of that view rather than the court's view of the general situation”

Lloyd LJ commented on the same point (p 184C-E):

“…If a tribunal adopts a procedure which is unfair, then the court may, in the exercise of its discretion, … quash the resulting decision by applying the rules of natural justice. The test cannot be different, just because the tribunal decides to adopt a procedure which is unfair. Of course the court will give great weight to the tribunal's own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair, especially so distinguished and experienced a tribunal as the panel. But in the last resort the court is the arbiter of what is fair.”

I prefer with respect the former statement, because it draws a clearer distinction between the decision-maker’s consideration of the “general situation”, which is reviewable only on Wednesbury grounds, and the judgment of the court on the basis of that assessment of what fairness requires. That seems to me a more helpful analysis than simply to require the court to give “great weight” to the decision-maker’s view of what fairness requires. For completeness, I should also mention a judgment of Sedley LJ in this court, which put the Guinness plc dicta in the context of the earlier case-law. He summarised the correct approach:

“What the appellate court is concerned with is what was fair in the circumstances identified and evaluated by the judge.” (Terluk v Berezovsky: [2010] EWCA Civ 1345 para 19)

Translated to the present context, the question of fairness should be judged 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.

Mr Southey submits that, in accordance with the principles for which he argues, an oral hearing should have been granted in Mr. Osborn’s case due to the following factors:

As he submits, these matters are not merely disputes of fact. As in Hussain what was in issue was the extent to which Mr Osborn’s maturity and personality meant that he could be trusted to comply with licence conditions.

I see some force in the submission that, contrary to the understanding of the judge, there were significant factual disputes on matters relevant to the decision. It appears from the Board’s first decision of 22^nd April 2009 that they did attach some weight to the “immediate breakdown of supervision under the current licence” and to Mr Osborn’s “apparent unwillingness to comply with the requirements of licence supervision”. These I take to be references, respectively, to the events of the release day itself, and to his alleged statements about his attitude to the conditions before his release.

The first solicitors’ letter of 6^th April (enclosing Mr Osborn’s handwritten note) had offered an explanation of the events of the release day, and, although at that stage instructions had not be obtained on the other allegations in Mr Holsey’s report, it was suggested that they might be attributable partly to his mental health problems. Generally, the letter gave some basis for thinking that the prisoner’s apparently defiant attitude towards the licence conditions should not be taken at face value. Unfortunately, the second letter of 28^th April was far less helpful. It did nothing to address the issues raised by Mr Holsey’s report, but instead put forward wholly unrealistic demands for witnesses to be made available without any indication as to what was in dispute. Understandably, the judge was unimpressed by that background, but he does not seem to have given sufficient weight to the 6^th April letter, which was in much more measured terms. In the light of that, I do not think he could fairly proceed on the basis that there was no “material dispute of fact” on these points.

On the other hand, he was right to consider that the Board’s decision on release did not ultimately depend on resolution of these issues. Another factor mentioned in their first letter was “the lack of information on his current mental health status and the recommendation that a full psychiatric assessment should be carried out prior to any re-release”. That, combined with “the very high risk of harm should he re-offend” provided ample reason for not allowing release, at least until the assessment had been carried out. On that, as the judge said -

“The Board's reasoning was not to the effect that Mr Osborn's psychiatric state was such that it was unsafe to release him. It was that the Board lacked information about the current mental health status…” (para 35)

For these reasons, I conclude that the judge reached the correct conclusion, and the appeal in this case should be dismissed.

Mr Southey QC submits that Mr. Booth ought also to have been granted an oral hearing because, in summary:

On this case, I agree entirely with the judge. Mr Southey’s points might have been relevant to the future handling of Mr Booth while in custody. However, whatever difference of professional view there may have been about that issue, there was no dispute about the need for him to remain in custody for the time-being. That was the question for the Board. In the circumstances they could properly form the view that there was no practical possibility of an oral hearing changing that position for the time-being.

Accordingly, in this case I would dismiss the application for judicial review.

I agree with both judgments and wish only to emphasise some of the features which emerge from both.

First, the approach of this court to issues of fairness in the procedure of a lower tribunal is not a Wednesbury test (Carnwath LJ at [41], Sedley LJ at [57-58]). I add that 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. In Booth, the judge correctly directed himself that “the question of fairness, and what fairness demands, is…one for the courts to assess as a matter of primary judgment”. But in giving his conclusion he concluded that the Board was “acting well within their powers” [20] and in Osborn he concluded that the reasons given for the Board’s refusal were “not irrational, unlawful nor wholly unreasonable” [38]. In giving leave in Osborn Maurice Kay LJ hinted at some concern as to the different ways courts at first instance were expressing their views. Berezovsky and 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.

Second, both these judgments and the jurisprudence on which they rely reveal a fundamental problem in resolving the issue as to whether fairness requires an oral hearing. That problem lies in the difficulty, if not impossibility, of drawing any identifiable line to distinguish between those cases in which an oral hearing ought to take place and those in which there is no such need. It is likely that where there is a dispute of fact relevant to the Board’s decision, an oral hearing should take place. But it is not possible to be dogmatic where there is no such dispute. It is understandable that, in attempting to identify those cases where no oral hearing is required, the Board and the courts speak of cases where there is no realistic prospect of the Board’s judgment being affected by an oral hearing (see e.g. [36]). The guidance in the Board’s “Criteria for refusing an oral hearing-Parole Board Amendment Rules 2009” refers to two sets of circumstances in which an oral hearing will normally be granted :

“1.

Where the ICM member considers there is a realistic prospect of success or a move to open conditions…. ”

The guidance then contradicts itself by providing:

“An oral hearing will not be granted where there is no realistic prospect of release or open conditions…”

This contradiction requires amendment to reiterate the absence of any hard and fast rule and the difficulty in expressing such a rule. Indeed, 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.

In R (West) and R (Smith) v Parole Board to which Carnwath LJ has referred, Lord Bingham emphasised that fairness may demand an oral hearing, even where facts are not in issue:

“While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may well contribute to achieving a just decision [31]”.

But what are those cases? Lord Bingham’s citation of Goldberg (see [37]), gives no further assistance since it only identifies cases where credibility and veracity are in issue. Sedley LJ’s comment at [62] is of importance to this question. He gives an example of a case where, absent any factual dispute, an oral hearing may be of value. This highlights the difficulty for a member of the Board charged with deciding whether an oral hearing should take place. 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” (John v Rees [1970] Ch 345, 402).

I agree with both judgments. Since, however, the question of how an appellate court approaches questions of fairness in the procedure of a lower tribunal is one of general significance, I take the liberty of reproducing in full what Mummery LJ and I said about it in Berezovsky v Terluk [2010] EWCA Civ 1345 (to which Carnwath LJ refers in §41 above):

Thus the recognition that fairness is a question of law has two implications which may be in tension with one another. It means first and foremost that 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 fact I question whether discretion is the correct word for most such decisions: they are, or ought to be, exercises of judgment.

Secondly, however, 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. For this reason among others it is desirable that tribunals should record in brief form what it is in the materials before them that has led them to their procedural decision. It goes without saying that the well-known judicial controls on fact-finding will apply. 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.

In the present cases the Board has given reasons which, while perfectly coherent, reproduce elements of what can be seen in the dossiers. It was on the basis of these that the Board had to ask itself whether fairness required an oral hearing, and that we in turn have to consider whether their conclusion that an oral hearing was unnecessary was unfair.

In Mr Osborn’s case there was an issue about why he had arrived late at the hostel, but no issue about the fact that he had done so. Once an automatic release prisoner has been recalled for breach, the Board’s concern is not only with the justification for recall, though this of course continues to matter: it is with any continuing risk now presented by the offender irrespective of the reason for recall. In Mr Osborn’s case this was without question high, and that in turn made the consequences of recall particularly serious both for him and for the Parole Board. But the Parole Board’s view that the element about which an oral hearing was sought was not one on which oral as against written testimony was likely to assist it in coming to a just conclusion on re-release was a legitimate factual appraisal of the case involving no evident unfairness towards the prisoner.

Mr Booth’s is an unhappy case. There is a real risk that institutionalisation may make him unable ever to cope in the world outside prison. The reports on him are pretty unanimous about this, though they do not record the unusual and positive feature that he has been having one-to-one counselling. 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. But Mr Booth’s is at present none of these cases, and an understandable desire on his lawyers’ part to see what concessions can be extracted from the report-writers at a hearing does not make it one.

For these reasons in addition to those given by Carnwath LJ I agree that both claims fail.