Osborn v The Parole Board

The claimant seeks to quash a decision of the Parole Board of 5^th June 2009 to refuse to grant him an oral hearing in respect of the Board’s decision to refuse to recommend his release from prison following recall in February 2009.

In R (on the application of Smith and West) v. The Parole Board [2005] UKHL 1 at paragraph 35 Lord Bingham stated:

“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.”

Taken in isolation, that statement would suggest that in some cases an oral hearing is necessary, whereas in others it is not. Earlier in his speech at paragraph 31, Lord Bingham had identified 2 broad classes of case in which an oral hearing was necessary. Thus in paragraph 31, he said

“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 contribute to achieving a just decision. The possibility of a detainee being heard either in prison or, where necessary, through some form of representation has been recognised by the European Court as, in some instances, a fundamental procedural guarantee in matters of deprivation of liberty…”

It was the second class of case to which the rest of paragraph 35 appears to have been directed. After the passage cited above, Lord Bingham continued:

“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. While the Board’s task certainly is to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him. It may often be very difficult to address effective representations without knowing the points which are troubling the decision maker. The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.”

Thus on the facts of Smith itself (see paragraph 46) the ability to make effective representations and orally to put a case at an oral hearing was required, even though the outcome would not necessarily have been different.

One of the cases of which play has been made by Mr Jagadesham on behalf of Mr Osborn was that of Waite v UK [2003] 36 EHRR 54, to which reference was made by Lord Bingham in Smith and West. Waite was serving an indeterminate sentence. He 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 argued that the Parole Board was “bound to conclude that public protection required that he be confined” (see paragraph 55 of the judgment). The court (paragraph 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. In matters of such crucial importance as deprivation of liberty and where questions arise involving, for example, an assessment of the applicant’s character or mental state, the Court’s case-law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing. In such a case as the present, where characteristics pertaining to the applicant’s personality and level of maturity and reliability are of importance in deciding on 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… ”

It should be noted, however, that in Bereza v Poland [2008] ECHR 248 the Court rejected a claim that the applicant should have been present personally at hearings relevant to his continuing detention: questions of assessment of his character and mental state did not arise relevantly on the facts. Thus, it can safely be stated:

The claimant was born on the 11^th March 1972. Before he was 18, he acquired a number of convictions for acquisitive and driving offences, but also 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 (between 26^th November 2005 and 21^st February 2006) and of the possession of an imitation firearm (20^th February 2006). It was alleged (though aspects of this are disputed by the claimant) that in the course of this offence he entered the home of his estranged wife wearing a balaclava and brandishing a firearm. It is said that his young daughter was present in the house at the time.

He was sentenced to 6 years imprisonment. The custodial part of that sentence expired on the 20^th February 2009, when he was released. He was recalled on the same day. He broke his conditions of release by arriving late at his hostel, having taken a detour that 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, it being said by the Probation Service that he stayed there for 29 minutes before leaving to go to the hostel, arriving there about 20 minutes late and outside a curfew (part of his licence conditions) by the same margin.

His offender manager wrote to him on the 24^th February to tell him that he had been recalled on two counts: a failure to report to the hostel without delay, and choosing to make a detour on route such that he did not achieve his first hostel curfew time requirement, which began at 12 noon. He was invited to make representations about it. The Ministry of Justice added that in view of the offences for which he was originally sentenced, the risks suggested by his offending history and his behaviour as described in a breach report completed by the Probation Service, which was attached to the letter, the Secretary of State was not satisfied that it was right for him to remain on licence.

The breach report was completed by the offender manager, Mr Holsey, and dated 6^th March. Mr Holsey said within it that in telephone calls from the claimant, the claimant had stated his absolute refusal to comply with the requirement of his licence. He had challenged that he should reside at approved premises, challenged his exclusion zone, and reiterated to Mr Holsey that he would in fact disappear for the weekend after release with his partner and their son. He had stated that he understood the inevitability of ensuing recall and would challenge his licence conditions from within the prison environment. Mr Holsey described how Mr Osborn had on two separate occasions scribbled through some of his licence conditions when presented with them in the week before his release, and wrote his opinion of them (indicating his disagreement) on the document. Mr Holsey had been told (“information received” was the source) that on the day of his release the claimant had stated his intent not to meet with his offender manager and that he had been generally difficult. Of greater significance perhaps was that when he was reminded of his firearms licence and that he could not have access to firearms he was reported to have said “not for another 2 hours” while grinning, and was reported to have said he would be back in prison shortly after he had done what he needed to do.

It was said in the report that shortly before he left the address in Handsacre he had telephoned the hostel manager to tell her that it was likely that he would be late because he was on the A38 (this being a lie). Earlier that week it is said that he had telephoned the hostel and spoken with the manager telling her that he could not share a room because he had a multi-personality disorder and if placed with someone else she would “live to regret it and there will be issues”.

The report showed that statistically the claimant was at a medium risk of general re-offending but if he did re-offend there would be an imminent risk of serious harm with a serious impact upon any likely victim.

In a passage focussed upon in the submissions made to the court on behalf of the claimant (in the light of Waite v UK) the offender manager said “given Mr Osborn’s statement that he has been diagnosed as having a multiple personality disorder, I believe that it is now timely for him to undertake a full psychiatric assessment so that his mental health can be properly assessed and treated if deemed necessary. I believe that this is crucial prior to his being considered for eventually release.”

Mr Holsey did not recommend release.

The Parole Board considered this report. Given the date of it, the claimant had every opportunity to dispute its contents. It emerged at the hearing before me that he had never disputed the contents in any meaningful way prior to this hearing. (Since the conclusion of the hearing, counsel for the claimant sent an unsolicited further submission to the Court which I had read before receiving the Defendant’s response that it was inappropriate that I should, especially in the light of the full and lengthy arguments addressed to the court by Mr. Jagadesham. This suggested that the claimant had disputed the facts set out in Mr. Holsey’s report prior to counsel’s skeleton argument being prepared for the court. I have re-read the material referred to. I do not see it as a clear disputation of the facts now said to be in issue But the Board was entitled to take the view that facts were only minimally in contention. I should simply add that proper procedure would have been to have agreed with the defendant that further submissions could be made, and in default of agreement, to have raised with the court whether it would entertain further submissions before sending them. It is regrettable that the claimant pre-empted matters by sending the submissions without first taking such elementary steps).

The Parole Board recommendation concluded with these words:

“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.”

It is plain that the reference to the unwillingness to comply with licence supervision derived from the contents of Mr Holsey’s report.

The Parole Board decision was dated 22^nd April 2009. On 28^th April 2009 his solicitor wrote to the oral hearing team at the Parole Board to request an urgent oral hearing “as we submit the Parole Board’s finding on paper is irrational”. It complained that a statement that the claimant’s representations and explanation of events on the day of his release made no reference to his detour whilst on route to the hostel was inaccurate. Secondly, it complained that the Parole Board had relied on information which the solicitors had not had the opportunity to consider (this seems surprising since the information was supplied in Mr. Holsey’s report, which went to the claimant over three weeks before this letter was written). It asked for a number of witnesses to be made available for an oral hearing, and for specific documents to be supplied, but 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 original application sought a decision as to whether the Parole Board would grant an oral hearing or not: its delay in doing so was then the issue. Since the decision, the focus has now changed to attacking the decision to decline the request.

It is argued that the Board (and HHJ Pelling sitting as a High Court Judge, when he declined permission) were wrong to ask whether an oral hearing might have secured a materially different outcome. The test is broader. It includes fairness. A court cannot speculate as to what the result of a proposed oral hearing might be (see Waite v UK [1996] 22 EHRR 1): Lord Bingham’s speech in Smith and West (at paragraph 46) envisaged that an oral hearing might be appropriate in circumstances other than those in which it might produce a materially different outcome, where procedural fairness needed to be guaranteed. Latham LJ. in R(on the application of O’Connell) v The Parole Board [2007] EWHC 2591 indicated that the Parole Board should be predisposed to holding an oral hearing (paragraph 24), although on the facts of that case one was not required where a prisoner had made it clear in his application for release that he intended to breach his licence conditions if released.

The second ground was that where there were psychiatric issues relevant to release, procedural fairness demanded that the Parole Board see and hear the claimant supposedly or possibly suffering from those problems.

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.

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.

For the defendant, Mr Manknell put forward six propositions. First, the Parole Board’s role is not to look at the validity of a recall, but to examine risk on release; second, when assessing that risk, the Parole Board is to be accorded a wide margin of discretion. This is exemplified, for instance, by the observations of the Lord Chief Justice, Lord Judge in R (James) v Secretary of State for Justice, Parole Board intervening [2009] UKHL 22, at 134:

“I am not to be taken to be encouraging applications by prisoners for Judicial Review on the basis that the prisoner may somehow direct the process by which the Parole Board should decide to approach its Section 28(6) responsibilities either generally, or in any individual case. These are questions pre- imminently for the Parole Board itself…The Administrative Court cannot be invited to second guess the decisions of the Parole Board, or the way it chooses to exercise its responsibilities.”

Lord Hope, too, emphasised (paragraph 21) that how the system operated by the Parole Board worked in practice in any given case was a matter for the Board itself to determine. Kenneth Parker J. in R (Saleh) v. Parole Board [2010] EWHC 179 determined that a Parole Board’s decision that no purpose would be served by an oral hearing was on the facts of that case unimpeachable, an example of these principles in action.

Third, Mr. Manknell submitted that the Parole Board was master of its own procedure; fourth, that an oral hearing was not required in every or most cases; fifth, it was a matter for the Parole Board if an oral hearing were needed and sixth, if the Parole Board reasonably concluded that an oral hearing could make no difference to the decision, that was itself a good reason not to have such a hearing.

Mr Manknell placed reliance upon the reasoning of the Divisional Court in R(O’Connell) v Parole Board [2007] EWHC 2591 on points left undisturbed by the subsequent appeal – [2009] EWCA (Civ) 575. At paragraph 24 Latham LJ. identified the relevant question as being

“Whether or not at the end of the day the answer to the question whether or not the claimant poses a relevant risk requires as a matter of fairness his presence at an oral hearing in order to determine the issues raised by his application.”

On the facts of that particular case his view was that the Parole Board decision was not one which could have been affected in any way by anything further that the claimant could have said beyond that which he set out in his written representation. Accordingly, there was no breach of Article 5(4) or denial of a fair hearing.

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.

In Hussain v The UK [1996] ECHR 8, paragraphs 59 and 60 of the judgment of the court are to the effect that where questions involving an assessment of an applicant’s character or mental state, personality and level of maturity were important in deciding on his dangerousness that would indicate that an oral hearing would be needed to ensure fairness.

Directing myself by reference to the test which Latham LJ. posed which I consider central, it seems plain that a fair procedure necessarily involves a prisoner knowing the material which is likely to be held against his release, so that he might have an opportunity to meet it. There will be many cases (though, from my part, I hesitate to say that it will necessarily be “most”) in which knowledge of those matters in writing will be sufficient to enable the prisoner to deal adequately with them. At one stage in the argument in the present case, it had appeared that Mr Osborn may not have known the matters to which Mr Holsey referred in his probation officer’s report. Had that been so, there would have been a breach of a fair procedure: but it transpired that indeed he had had the opportunity to meet them, and given the general need for expedition in decision-making related to the release of a prisoner, had sufficient time to deal with them prior to the Board meeting. 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.

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. I do not rule out that there may be circumstances in which even though there is nothing of such relevance to add there may on the exceptional facts of a case be such a need for the prisoner to see and understand how his case has been considered that procedural fairness demands a hearing in his presence, or that of his representative: but such cases if they exist will be rare, for by definition from the Board’s point of view it is being invited to participate in a process when the prisoner’s participation can add nothing of relevance. From the prisoner’s point of view, it is a waste of his time to take part in an oral hearing when nothing of relevance may be gained, and may even risk being a hollow charade where he has already responded in writing with all the relevant representations. If there is no obvious relevance, there is no good reason for the Board to bear the additional burdens of arranging and holding an oral hearing. Further, in reaching a decision whether there is such potential relevance, and whether to hold such a hearing, the Parole Board should have regard to the reasons given by or on behalf of a prisoner for seeking an oral hearing. It was plain from the letter of 28^th April 2009 that the focus here was on matters in which on any view were peripheral to the actual decision made – some details of the reason for his lateness, which in any event he addressed fully in writing – and a detail in relation to the offence in respect of which he was serving his sentence. The bulk of the letter, however, indicated a desire to ask questions about matters of fact which did not appear actually to be disputed. They did not on the face of them therefore appear to have any real and significant relevance to the risk to the public which the re-release of the claimant might involve.

The Parole Board’s refusal to hold an oral hearing could not, in the light of that, be said necessarily to have been an error of law.

The principal focus of Mr Jagadesham’s attack upon the decision, once it became apparent that the probation report of Mr Holsey had been available to the claimant in advance of the hearing before the Parole Board, was upon the need as he suggested it was for the Parole Board to make its own evaluation of the claimant’s mental state. This was a case, he submitted, where questions arose which involved an assessment of the prisoner’s mental state, such that it was manifestly unfair for the respondent to dispose of the case without an oral hearing.

The argument that an oral hearing is necessary because a prisoner claims to be suffering from a mental state, or others think it appropriate that there should be a psychiatric report before release, places too great a weight upon those matters. 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. The lack of information about psychiatric factors that might affect risk on release required “a full psychiatric assessment”, which the claimant himself could neither provide nor short circuit. In short, I reject Mr Jagadesham’s submission which in its final form was to the effect that if there is any allegation by a prisoner that he suffers from mental health problems an oral hearing is required.

Accordingly, I am satisfied that in this case those matters which were held against release were matters upon which the claimant was informed in advance of the hearing, and upon which he could comment and did. Most were undisputed. The conclusion (see pages 107,108 of the bundle) was obvious. Even though predisposed toward an oral hearing, it is difficult to see how in this case one could have contributed information relevant to risk, or could have informed future decisions in Mr Osborn’s case, and it is plain that seeing him in the absence of a psychiatric assessment by a medical professional would not have advanced the justice of any decision then taken.

I return, finally, to the reasons given for refusal. I accept the first five principles for which Mr Manknell contended, subject to the reservations I have already expressed at paragraphs 6 and 31 about the third of them, though none recognises in terms the test which Latham LJ. derived from Smith and West, Waite, and Hussain and expressed in the terms I have cited above. The sixth proposition is too widely stated: but the degree to which any of the advantages of an oral hearing which I mentioned at paragraph 29 above may assist the Board in discharging its duty to act fairly, in accordance with the general principle I have set out, is undoubtedly of importance, and one factor which will weigh against a hearing is that there appears reasonably to the Board to be little of any potential relevance which an oral hearing might contribute to the presently anticipated or potential future hearings and decision(s) as to release, taking into account the reasons expressed by the prisoner for wishing an oral hearing.

In my view, it follows that the reasons given for refusal are not irrational, unlawful nor wholly unreasonable, and the challenge to them on judicial review grounds must inevitably fail.