Adrian Woodhouse, R (on the application of) v The Parole Board for England and Wales

This is a claim for judicial review brought by Adrian Woodhouse [“the Claimant”] against a decision of the Parole Board for England and Wales [“the Defendant”] refusing his release from custody.

The claim was issued on 27^th June 2024. The claim included a witness statement dated 11^th June 2024 from Miss Sara Watson, the Claimant’s solicitor, who had represented the Claimant at his oral hearing before the Defendant on 23^rd February 2024.

On 17^th July 2024 the Interested Party sent a letter by email to the Administrative Court Office stating:

“Our client has carefully considered the Claimant’s Claim form, Grounds, and it has been decided that we wish to remain neutral in this litigation.”

The Defendant filed an Acknowledgment of Service on 25^th July 2024 indicating, in accordance with their Legal Position Statement, that they were taking a neutral position to the claim and did not intend to make submissions. However, the Acknowledgement of Service did include the following:

“The Claimant raises the issue of delays in their representative arriving and entering the prison leading to a shortened timeframe for the hearing. The defendant was unable to postpone the Claimant’s hearing start time to take into account that delays the Claimant’s representative faced in arriving and entering the prison because there were two other hearings listed for the same date …. the Claimant’s being the first hearing of the day. If the Claimant’s hearing was allowed to run over time this would have a knock on effect to the other hearings listed over the course of the day. In any case, the defendant is not responsible for the arrival time of the Claimant’s representative, or any delays caused by prison staff.”

Permission was granted by a single Judge on the papers on 29^th August 2024 and directions were given which included for the Defendant to file and serve any Detailed Grounds for contesting the claim and any evidence in support within 35 days of service of the order.

On 11^th September 2024 the Government Legal Department wrote a letter to the Court on behalf of the Defendant stating that the Defendant would remain neutral and did not intend to file Detailed Grounds but would instead rely on their Acknowledgement of Service.

Given the stance taken by the Defendant and the Interested Party the only written and oral submissions before me were those made on behalf of the Claimant.

During the course of the hearing I was referred to both an Authorities Bundle and a 934 page Hearing Bundle [“HB”] (which is also referred to as a Core Bundle) both of which I had read in advance. Much of that HB contained the Defendant’s dossier on the Claimant which was considered as part of the decision under review. That dossier was 724 pages long.

The Claimant was born on 5^th May 1977. He is therefore currently 47 years old.

On 9^th November 2005 the Claimant received a determinate sentence totalling 20 years following his conviction, along with other offenders, for serious criminal offences which included an offence of conspiracy to supply class A controlled drugs (cocaine and MDMA) as well as associated offending including the possession of various firearms. Before that conviction the Claimant was heavily convicted. Indeed the sentence he received on 9^th November 2005 was his 22^nd conviction.

On 4^th February 2016 the Claimant was released on licence from his 20 year sentence. However, on 30^th July 2017 the Claimant's licence was revoked. He was returned to custody having been arrested following a surveillance operation in which he was seen to pass a holdall, which was later found to contain £800,000 worth of cocaine and MDMA, to another person in another vehicle. The Claimant was also found to be in possession of further large quantities of class A drugs, as well as being in possession of a large amount of cash at his home address. The Claimant was prosecuted for these additional matters and on 26^th January 2018 he received a further determinate sentence of 10 years’ imprisonment.

Whilst in custody in 2019 the Claimant was convicted of an offence of being in possession of a mobile telephone whilst in prison. He was sentenced to a further term of imprisonment of four months. In the absence of a decision by the Defendant for early release the Claimant is due to be automatically released on licence on 24^th April 2025.

On 25^th January 2023 the Defendant undertook a paper review of the Claimant's detention and made no direction for release [HB p870-879]. That was the third such paper review following his recall on licence in 2017.

On 14^th February 2023 the Claimant’s solicitors applied to appeal the Defendant’s decision of 25^th January 2023 and requested an oral hearing [HB p880-890]. That application was successful. On 13^th March 2023 the Defendant directed that an oral hearing should take place [HB p891-896]. That decision indicated that the oral hearing:

“is likely to wish to consider: his behaviour on licence including the recall offences; his 2019 sentence for possession of a mobile phone; his progress in custody since recalls; an independent assessment of risk; whether there is outstanding risk reduction work to complete and how and where this should be addressed; the release and risk management plan; Mr Woodhouse his plans for the future.”

The document also stated: “Further directions are made below which might be added to or varied by the Oral Hearing Panel Chair. A time estimate of 3.5 hours has been given, which includes time for the pre- and post-panel discussion”. The directions then referred to included:

The oral hearing was subsequently fixed for 23^rd February 2024. At no time before that hearing were any further directions or any variation to the directions set out at paragraph 15 above made by the Panel Chair. However, in advance of the oral hearing the Claimant’s solicitor submitted a ‘Stakeholder Response Form’ requesting that the hearing commence at 11am as she was travelling to HMP Leyhill from London. That request was refused by the Panel Chair and the hearing was listed to commence at 10am.

On 23^rd February 2024 the Claimant’s solicitor arrived at HMP Leyhill at about 9:40am. However she was delayed in being granted access to the Prison as they were unable to find the relevant authorisation form, which had been previously supplied, in relation to her laptop. That caused a delay which meant that the hearing did not commence at 10:20am. The panel comprised one Parole Board member and an independent member.

The Claimant's case, supported by witness evidence, is that the Panel Chair advised all parties present on two occasions that the hearing would not and could not go beyond 12pm. As is clear from the Acknowledgement of Service that is because there were two other cases listed that day. Therefore there was a total of only 100 minutes for the hearing. The Claimant’s witness evidence is that the Panel Chair also indicated to the Claimant’s solicitor that her questions had to be limited so as to ensure that all of the evidence could be taken within that 100 minute period. The Panel Chair further directed that closing submissions would be required in writing rather than orally. That is because there was not time for them to be made orally. The Claimant’s solicitor drafted those written submissions and provided them to the Defendant. Although they were not within the HB I asked (during the course of the hearing before me) to be provided (and was provided) with those submissions so that I could assess the fairness or unfairness of the procedure that was operated and the fairness/unfairness of the proceedings more generally.

In relation to the hearing three witnesses gave evidence. They were the Community Offender Manager, the Prison Offender Manager and the Claimant. As I have already made clear this was the Claimant’s first oral hearing following his recall in 2017.

Sara Watson’s witness statement [HB p34-37] in relation to the hearing includes the following [§§11-15 ]:

“At MCA stage when the case was initially directed to an oral hearing it was considered by the MCA process on the 13^th March 2023. This case was said to require a listing for three hours 30 mins. This was said to require a two-person panel. No PCD’S has been published since this date to suggest these logistics had been reviewed and changed.

Given the time pressures, we were facing along with the 11 months delay Mr Woodhouse had faced to get his case listed, I decided to press ahead in haste or face a deferral of up to 6 months. The impact of pressing ahead was that I was unable to fully test evidence considering the time constraints and being informed consistently about these.

It was also noted in the hearing by the POM Ms Haliwal that she felt Mr Woodhouse did not come across well in his evidence she put this down to his anxieties which we had already expressed to the panel in the SHRF informing them of the reasons why I would be attending in person; I reiterated this matter when I joined the hearing.

Lastly, I note that due to time pressures it was clear mistakes were being made about factual information, by the panel chair. If the relevant time had been taken to listen to the evidence and ask the relevant questions these errors would not have occurred, an example of this being. The panel noted

“Turning to the fact that his behaviour has been positive over a number of years, the panel does not consider that in this case this is a reliable indicator of risk reduction. Mr Woodhouse does not have the characteristics or problems which lead many prisoners to struggle in custody and therefore his commitment to change in a range of circumstances needs to be extensively tested in the panel's view.”

This goes completely against the information in the dossier which states:

“During his previous time in custody he accrued 30 plus adjudications and spent prolonged periods in segregation. However the recent reports on his sentence evidence no adjudications so this should be a reliable indicator given his behaviour is a stark contrast to that of his last sentence.”

On 14^th March 2024 the Defendant communicated its written decision to the Claimant namely that there would be no direction for his release [HB p49 – 60]. Nothing is said in that decision about the fact that only 2 hours had been allocated for a hearing when an original time estimate had been 3 ½ hours.

The core parts of the Defendant’s decision of 14^th March 2024 not to release are as follows:

The Claimant’s licence was revoked by the Interested Party pursuant to section 254 of the Criminal Justice Act 2003 [“CJA”].

In this case, as set out above, there had already been two paper reviews by the Defendant. Accordingly the relevant statutory provision is section 256A of the CJA which provides for a further review and in so far as is relevant (with emphasis added):

Rule 24 of the Parole Board Rules provides:

The relevant and applicable principles in so far as decisions and actions of the Defendant and procedural fairness are well established. In R (Osborn and others) v The Parole Board [2013] UKSC 61; [2014] A.C. 1115 the Supreme Court considered the interplay between the principles of procedural fairness and when and whether an oral hearing should be directed for a prisoner. That is not the issue that arises in this judicial review claim. However, a number of the principles set out in Osborn are relevant either directly or by analogy.

The relevance and application of the propositions in Osborn to a situation where the alleged unfairness is the build up to and/or the conduct of the oral hearing itself were addressed in R (Grinham) v The Parole Board and the Secretary of State for Justice [2020] EWHC 2140 (Admin) where Mr Justice Spencer stated [§50]

“The leading authority on procedural fairness in relation to Parole Board hearings is R (Osborn and Booth) v Parole Board [2013] UKSC 61; [2014] AC 1115. The principal issue in that case was the circumstances in which an oral hearing would be necessary. Mr Withers has helpfully identified the following propositions from the case which are pertinent to the present application for judicial review.

(i)

The court must determine for itself whether a fair procedure was followed. The court's function is not merely to review the reasonableness of the decision maker's judgment of what fairness required: [65].

(ii)

An oral hearing was likely to guarantee better decision making in terms of the uncovering of facts, the resolution of issues and the concerns of the decision-maker, due consideration being given to the interests at stake: [66].

(iii)

One of the virtues of procedurally fair decision-making is that it is liable to result in better decisions by ensuring that the decision-maker receives all relevant information and that it is properly tested. The purpose of a fair hearing is not merely to improve the chances of the tribunal reaching the right decision. At least two other important values are also engaged: [67].

(iv)

The first is the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel: [68].

(v)

Research has revealed the frustration, anger and despair felt by prisoners who perceive the Parole Board's procedure as unfair, and the impact of those feelings on their motivation and respect for authority: [70].

(vi)

The second value is the rule of law. Procedural requirements that decision-makers should listen to persons who have something relevant to say promote congruence between the actions of decision-makers and the law which should govern their actions: [71].

(vii)

The Parole 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 prisoner's legitimate interest in being able to participate in a decision with important implications for him where he has something useful to contribute. An oral hearing should therefore be allowed 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 to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him: [82].

(viii)

When dealing with cases concerning recalled prisoners, the Parole Board should bear in mind that the prisoner has been deprived of his freedom, albeit it conditionally: [83].

Mr Justice Spencer also addressed the issue of written submissions in Grinham where he stated [§51]:

“As Mr Withers pointed out, in Osborn and Booth in the Court of Appeal, [2010] EWCA Civ 1409, referring at [37] to American authority, Carnwarth LJ highlighted the fundamental limitations of written submissions:

"…[written] submissions do not afford the flexibility of oral representations; they do not permit the recipient to mould his arguments 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 a decision…".

Mr Buckley rightly accepted during the course of argument that the facts in Grinham are starker, in terms of unfairness, than in the instant claim. However, plainly the facts in Grinham or equivalent facts are not a minimum requirement to establish procedural unfairness.

There is just one ground of judicial review namely procedural unfairness. However, that single ground is categorised by the Claimant as having two sub-headings: (a) time constraints and (b) factual inaccuracies. In reality though the factual inaccuracies are said to be evidence of the unfair time constraint.

The Claimant’s written and oral submissions can be summarised succinctly. Procedural fairness here required, on these facts and with the scope of the issues to be decided by the Defendant, an appreciably longer hearing than either the 100 minutes that it had or for that matter the 2 hours that it had been listed for. That is because there were a number of important matters that needed to be addressed at the Claimant’s first oral hearing since 2017 and which the Claimant submits were not addressed properly and therefore fairly. It was succinctly put in oral argument that the Claimant simply “did not get a fair crack of the whip”.

Other points are made about the unfairness of, for example, the use of written submissions and that there was only one panel member rather than the two panel members that had been directed.

This is not a rationality challenge to the decision of 14^th March 2024, but solely a challenge against the Defendant on the basis of procedural unfairness relating to the conduct of the hearing on 23^rd February 2024. That requires me to ask myself whether, on the facts, a fair procedure to the Claimant was followed here or not.

It is for the Claimant to establish, on a balance of probabilities, that procedural fairness required a different procedure – in reality an appreciably longer hearing. It is not sufficient for the Claimant to establish that a different procedure would have been better or fairer for him. In reality he must establish that the procedure was unfair (Regina v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531 , Smith v Scottish Ministers [2021] CSOH 83). However, once a Claimant can establish procedural unfairness then it is enough to show that but for that procedural unfairness the outcome might have been different. It is not necessary for the Claimant to establish that the outcome would have been different: see R (Clegg) v Secretary of State for Trade and Industry [2002] EWCA Civ 519, [§30]. In R (Gopikrishna) Office of the Independent Adjudicator for Higher Education [2015] EWHC 207 (Admin) [§209].

In my judgement some of the criticisms made by the Claimant in the claim when properly analysed are of no consequence in so far as procedural fairness is concerned. I will deal with those first before turning to the real substance of the claim.

Complaint is made that there had been a direction that there should be 2 panel members. I cannot see why the fact that there was only one panel member plus an independent member created any procedural unfairness or could reasonably be perceived to have created such unfairness. There is nothing to this point.

Complaint is also made about the use of written submissions. The Claimant relies on Grinham in support of this. In my judgement written closing submissions do not prima facie support a ground of procedural unfairness. Indeed on occasion the converse is true. Whether there is ever anything procedurally unfair about the use of written closing submissions must be a fact specific decision. Here the Defendant had already indicated what the issues were in advance and the scope and nature of the questions asked during the hearing would also have made that clear. In order to consider this aspect of the claim carefully I have read the content of the written closing submissions that were made in the context of the decision itself and I can discern nothing procedurally unfair about the use of written submissions here. Accordingly this aspect of procedural unfairness also falls away. Further I would add that the use of written submissions ensured compliance with Rule 24(9). When a prisoner is represented that part of the rule is plainly satisfied where the prisoner’s legal representative makes written closing submissions either orally or in writing.

The real and difficult issue in this claim is the procedure adopted before and during the hearing in relation to the length of the hearing. Whilst it may have been advisable for the Claimant’s solicitor to have attended HMP Leyhill slightly earlier than 9.40am as delays of the type that occurred here are not uncommon the critical issue here, in my judgement, is that only two hours was allowed in terms of listing for a hearing which had originally been envisaged to last three and half hours. I note that the Claimant has slightly overplayed, in written submissions, an aspect of the issue of timing. The 3½ hour time estimate was expressly said to include time in advance for the panel to have discussions and for discussion afterwards. However, on these facts the discussion before would have taken place before 10am and it is difficult to see that the discussion afterwards would have taken any more than 30 minutes, at most. On that basis the duration of the hearing was unilaterally and without notice or any directions being given effectively reduced from 3 hours to 2 hours. That is a marked reduction in percentage terms.

If I was simply to have read the decision not to release the Claimant in the context of the dossier and the Claimant’s offending history I could not have concluded that there were errors of law or that it was a decision that the Defendant could not reasonably have come to. However, that is not the assessment that I have to conduct because the challenge is one of procedural fairness.

On the evidence before me (and noting that the Defendant has not addressed the issue about the sufficiency of a two hour listing in any way in the Acknowledgment of Service or with any evidence) I am satisfied, on a balance of probabilities, that two hours was too short a listing for the issues that the Defendant had to determine. Those issues were made clear in the directions given in advance. It is also worth noting the length of the dossier, the complex history of offending, the issue of recall and the fact that there was evidence supportive of the Claimant’s release. I am reinforced in my conclusion because at no stage did the Panel Chair in advance vary the directions in relation to the duration of the hearing or give any reasons for so doing. The reality here is that too many hearings were being compressed into a single day by the Defendant.

I have come to my conclusion bearing in mind the uncontested evidence from Sara Watson which is that she was unable fully to test the evidence. That assertion is corroborated to a certain extent by the fact that the Prison Offender Manager concluded that Claimant did not come across well in his evidence and had put this down to his anxieties. I infer that this was, at least in part, caused by the expedited timetable. The last additional point which supports my underlying conclusion is an apparent error on the face of the decision of the Panel in relation to the recent conduct of the Claimant.

Accordingly I have been persuaded on the evidence before me that the compressed timetable here was insufficient and no matter how well the hearing was managed 2 hours was not, on these facts, a sufficiently long hearing for the proceedings to be fair.

I therefore quash the decision of the Defendant of 14^th March 2024 not to release the Claimant and order that an expedited hearing should happen as soon as possible and in any event so that a decision can be taken in advance of 24^th April 2025 which is the date of the Claimant’s release. I appreciate that that will place something of a burden upon the Defendant as updated evidence will be required. Given what occurred on the last occasion I would invite the Defendant to consider listing that hearing for 3 hours, excluding discussion and deliberation time.

I wish to emphasise that nothing in this judgment should be taken as in any way seeking to suggest that the Chair of a Parole Board Panel should not be able to case manage a hearing both in advance and during the hearing to ensure that it is both expeditious and fair and to do so by placing reasonable limitations on questioning. That may include ensuring that any representative of a prisoner remains focused on asking questions confined to the issues which will determine release or not. Experience in practice and on the bench reveals that cases can often proceed perfectly properly and fairly in appreciably less time than they have been allocated. However, if the length of the hearing is to be markedly reduced as it was here then a direction should be given in advance with (brief) reasons as to why the previous time estimate is no longer appropriate.

It will be apparent that the Court has not been assisted in this claim by the approach taken by the Defendant. It is obviously a matter for the Defendant which claims it intends to participate in and which it does not. There will be many claims against the Defendant when the relevant decision document stands for and speaks for itself. This was not such a claim. Where a judicial review claim is based on a complaint about the procedure operated in the oral hearing the need for the Defendant to consider taking a more active role and/or serving evidence becomes stronger. Here the Acknowledgment of Service in addressing the lateness of the Claimant’s solicitor missed the real point which was that the realistic length of the hearing had been reduced from 3 hours plus discussion time to 2 hours and without notice to the Claimant. That was not addressed in any way by the Defendant at any stage of these proceedings and it would have been easy to have done so.