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

This is a judicial review of the Parole Board’s decision that the Claimant, a recalled prisoner, is unsuitable for re-release on licence. The Claimant’s principal contention is that the decision was procedurally unfair because the Board made it without an oral hearing. Permission to bring the claim was granted on 5 November 2025 by Hugh Southey KC sitting as Deputy High Court Judge. In accordance with its usual practice, the Board takes a neutral stance and was not represented. The Secretary of State has also remained neutral and has not participated in the claim.

At the end of the hearing I announced that I would allow the claim and outlined my reasons. These are my detailed reasons.

Where a prisoner’s case is referred to the Parole Board, Rule 19 of the Parole Board Rules 2019 (as amended) requires a panel to make a provisional determination either that the prisoner is suitable for release, or that he is unsuitable for release, or that his case should be directed to an oral hearing. Such provisional determinations are typically made by a panel consisting of a single member and are referred to as “Member Case Assessments” or MCAs.

Where, in an MCA made under Rule 19, the Board determines that the prisoner is unsuitable for release, the prisoner may apply in writing for his case to be determined by a panel at an oral hearing: Rule 20. Such applications under Rule 20 are determined by a “duty member” of the Board who was not involved in the Rule 19 decision.

If the duty member refuses the application for an oral hearing then, in most cases the provisional decision made under Rule 19 becomes final at that point. However, in certain classes of case, including where the prisoner is serving an indeterminate sentence, the prisoner may apply for a reconsideration of the Rule 19 decision under Rule 28 and the Rule 19 decision remains provisional, only becoming final if and when the application under Rule 28 is dismissed. The Rule 28 application is determined on paper by an “assessment panel” and the assessment panel may only direct a reconsideration of the provisional Rule 19 decision if satisfied that it contains an error of law, is irrational or was procedurally unfair.

The Claimant is a 37 year-old man. He was sentenced on 10 December 2008, aged 20 years old, to an indeterminate sentence (or ‘IPP’ sentence) for three offences: conspiracy to possess a firearm with intent to endanger life (later overturned on appeal) and two counts of possession of a firearm with intent to endanger life. He was 18 years old at the time of the offending. His tariff was set to expire on 4 September 2013 but he remained in custody well in excess of that. Following his fourth Parole Board review, he was released on 16 December 2024, having spent over 17 years in custody.

The Claimant was placed in approved premises in Bromley, South London. His licence conditions imposed an 11pm curfew and required him to sign in at his accommodation every day at 2pm.

On 17 December 2024 (his first day at liberty) the Claimant tested positive for cannabis. He says this was due to his having smoked cannabis the day before, while still in custody. On an unspecified number of occasions, he did not sign in at 2pm. According to the Board, he returned to the approved premises after 11pm on 4, 7, 14 and 15 January 2025. This resulted in the accommodation manager issuing him with a “Notice of Concern” on 15 January 2025 but he returned after 11pm again on 17 January 2025. An “Improvement Plan Meeting” was fixed for 20 January 2025 but the Claimant did not attend due to having another commitment and it was rescheduled for 24 January 2025. Before then however, on 21 January 2025, according to the Board, the Claimant breached his curfew again and he was recalled to custody on 22 January 2025. The stated reasons were the breaches of the curfew and the 2pm sign-in requirement (not the cannabis matter).

A“Recall Dossier” was produced on behalf of the Secretary of State for the purpose of the Board’s considerations. I understand that the core parts of this dossier will have been provided to the Claimant and his solicitors in advance of a provisional decision being made under Rule 19, to enable them to make submissions. The core parts of the Dossier included a “Part A Report” completed by a Matthew Scott on 22 January 2025, an “OASys Assessment” of the same date, assessing the level of risk of serious harm that the Claimant posed, and a “Part B Report” completed by the Claimant’s Community Offender Manager, David Williams, on 11 February 2025 following a short interview on 5 February 2025.

The Part A report noted some explanations that the Claimant had given for missing the 2pm and 11pm deadlines but concluded that his behaviour was “linked to his disposition to push boundaries and to challenge those in authority”. The report also described his behaviour as “controlling and persistent” and having characteristics that were similar to that exhibited when he committed the offences for which he was imprisoned. Mr Scott opined that the Claimant therefore presented a high risk of harm to the public which could not be managed safely by accommodating him in approved premises.

In the Part B Report, among other things, Mr Williams drew attention to a Neurodevelopmental Conditions Assessment Report dated 22 October 2020, prepared by two registered psychologists, which noted that the Claimant had behaviours consistent with ADHD, some social communication difficulties, and an “unusual perceptual-cognitive style” which could cause his thinking to become “quite rigid on a topic irrespective of the consequences” and which “may impact” both on his engagement with risk reduction programmes and “his ability to follow rules and adhere to the expectations of his imprisonment”. Mr Williams also referred to a psychological report dated 9 July 2023. The conclusion reached by Mr Williams was “that before he is re-released Mr Ford needs to engage in some form of intervention in custody to develop the skills that will help him to comply with any future licence conditions.” . He added that, in light of the psychological reports, “Mr Ford may need some form of specialist intervention to address any issues he may have in relation to his Attention Deficit Hyperactivity Disorder, and ASD traits, which may impact on his capacity to comp[l]y with rules at an Approved Premises, and with any future licence conditions.”

The Claimant submitted representations to the Board inviting them to re-release him. Among other things he stressed that, in his brief time on licence he had enrolled on a university course, embarked on a mentoring programme and arranged therapy sessions which were due to begin on 23 January 2025. He said he had email evidence of him informing his probation officer about his mentoring sessions. He expressed confusion at the alleged breaches of the 2pm sign-in condition, saying that his probation officer had told him that providing evidence that he had appointments that clashed with the sign-in time would exempt him from punishment and offering proof that he provided or sought to provide such evidence. He accepted that he had occasionally returned to his accommodation after 11pm but said that, on each occasion, he had kept in regular contact with his staff to explain his whereabouts and lateness. He acknowledged difficulties with time management, which he attributed to his psychological and cognitive issues and he said that he “was prepared to address [his lateness] constructively in an Improvement Plan Meeting…”. As to why that meeting did not go ahead as planned on 20 January, the Claimant offered the following explanation:

“I also received a letter scheduling an Improvement Plan Meeting for 20th January, which I received the night before (19th January). On the morning of 20th January at 11:50am, I contacted my key worker to request permission to attend the meeting via video link. This request was made because I was due to start my mentoring program that day and still wanted to attend the improvement meeting. Initially, I was told I could attend via Microsoft Teams, but then told the meeting needed to be in person so would be rescheduled for later that week.

Immediately after, I called my probation officer to update him again about the conflict of meetings and seek his advice on how to proceed. During our conversation, my probation officer advised me to attend my mentoring session, and at no point did he raise any concerns…”

The Claimant also claimed that, when he spoke to him for the purposes of completing his Part B Report, Mr Williams was unaware that the Improvement Plan Meeting had been rescheduled (before the recall decision) for 24 January 2025. The Claimant said that he was told that he would be visited again by Mr Williams before the Part B Report was completed but that this did not occur, so that “Part B was submitted without my full account”.

The Claimant’s own submissions were supplemented by written submissions from his solicitors (a different firm from that which represents him now), including an express request for an oral hearing. The solicitors stated that the Claimant “has engaged with the prison regime since being recalled back to custody. [He] is currently enhanced IEP status and is complying with the regime without issue.”

On 28 April 2025 the Board issued an MCA under Rule 19. The writer determined that the Claimant was unsuitable for release or transfer to open conditions. In respect of the Improvement Plan Meeting, the writer held that the Claimant had been informed of it on 17 January 2025 (not dealing with the Claimant’s submission that he only learned of it on the night of 19 January 2025). The writer continued:

The writer also placed reliance on two “negative entries” on his prison record concerning incidents on 5 February 2025 when it was recorded that he had twice threatened to punch an officer in the face, resulting in a “behaviour warning”.

The writer stated that they had considered the question of an oral hearing by reference to the principles in Osborn (see below) but concluded that “there is no reason to believe that oral evidence would assist in: resolving any disputes concerning facts; providing information that might mitigate the apparent level of risk presented; or, would enable clarification of any points materially relevant to the assessment of risk, which are already clearly set out in the information supplied”. They wrote, “Having considered Mr Ford’s representations, the panel does not find that there are any reasons for an oral hearing.”

The Claimant’s (then) solicitors made a timely request under Rule 20 seeking an oral hearing, supported by written representations dated 29 April 2025. Those representations drew attention to the Claimant’s psychological and cognitive problems already noted in the Part B Report. They also put on record that the Claimant denied the behaviour recorded in the two negative entries for 5 February 2025 and asserted that there was no evidence of aggression on his part since recall.

The Board refused the Rule 20 request on 2 May 2025. Among other things the Panel Member who wrote the refusal stated that she could “see no evidence that your neurodiversity equates to you being disadvantaged by a paper review, or that the appropriateness of the recall is in doubt due to this”; she held that there were no relevant disputes of fact or valid mitigation surrounding the breaches of the licence conditions; she said, in relation to fairness and the right to participate, "oral evidence is not the only way that this can be achieved. You do not specify why you consider oral evidence is the only way for you to achieve this"; and in relation to the disputed “negative entries”, she said “Oral evidence will not progress this matter further because it will come down to you saying one thing and an officer saying another”.

On 6 June 2025, now represented by his new (and current) solicitors, the Claimant applied for a reconsideration of the provisional Rule 19 decision under Rule 28 on the grounds that it had been procedurally unfair and irrational to refuse to order the Claimant’s release without first holding an oral hearing. Among other things. these representations advanced a number of new factual matters and asserted that the Claimant had in fact only missed his curfew on 2 occasions (giving detailed explanations for those breaches). It was asserted that the Claimant had given his former solicitors detailed instructions on these matters and was unaware that they had not been included in the representations that his former solicitors had submitted.

On 23 June 2025 the Board issued its decision under Rule 28(6)(b) dismissing the application. At that point, the decision made under Rule 19 became final. The principal reason for rejecting the complaint of unfairness was the writer’s self-direction that this had to be judged by reference to the information presented to the panel who had refused an oral hearing, and not the factual material later submitted by the Claimant’s new solicitors in support of his Rule 28 application.

The stated target of the judicial review claim is the Rule 28 decision of 23 June 2025 but, in substance, it challenges the Rule 19 decision, which became final on 23 June 2025, and I have approached it in that way.

Three grounds are relied on: (1) procedural unfairness, consisting in not holding an oral hearing; (2) a failure to give adequate reasons; and (3) a breach of Article 5(4) ECHR.

Authoritative guidance as to whether, in this context, procedural fairness requires an oral hearing was set out by Lord Reed in R (Osborn) v Parole Board [2014] AC 1115 at [2]:

At [65] Lord Reid explained that it is for the Court itself to determine whether a fair procedure was followed. Its function is not merely to review the reasonableness of the decision-maker’s judgement of what fairness required.

In R (Somers) v The Parole Board [2023] EWHC 1160 (Admin), at [55] Mrs Justice Foster observed that, in the case of a prisoner subject to an indeterminate sentence who has been detained beyond his tariff, the reasoning in Osborn  “…is tantamount to articulating a presumption in favour of a hearing in such cases. Put otherwise, a good reason for not holding a hearing should be present when a refusal is made in the case of a post-tariff lifer, for whom the issues of insight, behaviour and risk (at least) are central to progress, and are almost certainly best examined and understood in the open forum of an oral hearing. The obligation to consider the prisoner's position falls upon the Board, it is not dependent upon the prisoner..”

As noted above, in rejecting the Claimant’s complaint of procedural unfairness made in his Rule 28 application, the writer directed herself that the fairness of the procedure adopted by the panel had to be considered by reference to the information available to the panel at the time and ignoring the new factual matters raised in the Claimant’s Rule 28 application. I can see some force in that and, similarly, some force in the proposition that a reviewing court should assess the demands of fairness by reference to the information that was available to the panel when it made its decisions under Rule 19 and Rule 20, not material that emerged later. I did not hear full argument on the point however and I do not need to decide it. For the reasons I give below, fairness required an oral hearing in this case even if it is correct that the Court should ignore material that was only put forward at the Rule 28 stage.

Olivia Beach, counsel for the Claimant, submits that there are four factors which, cumulatively, required an oral hearing in this case. I agree with her.

First, she submits, there is the Claimant’s status as an IPP prisoner, still in custody many years after the end of his tariff. I agree that this required his case to be scrutinised “even more anxiously” than that of other prisoners (Osborn principle (vi)) and that the presumption in favour of an oral hearing, recognised in Somers, applied, absent any good reason for refusing a hearing.

Although the Board acknowledged that the Claimant was an IPP prisoner over-tariff, there is no acknowledgment of the need for the “even more anxious” scrutiny that his status entailed. Neither do any of the Board’s decisions articulate a good reason for declining the oral hearing that would ordinarily be required in order to achieve that heightened standard of scrutiny. On the contrary, they effectively treat the Claimant as being under a burden to demonstrate that an oral hearing is necessary.

Second, Ms Beach submits that there were material factual disputes that the Board needed to resolve. She refers to (a) the dispute about the negative entries on the Claimant’s record since recall and (b) the dispute about the circumstances of the abortive Improvement Plan Meeting on 20 January 2025.

As to the negative entries, it ought to have been apparent to the Rule 19 decision-maker that the Claimant may not have known about these when he and his solicitors first made representations: they were not marked as being part of the “core” Dossier, and the note of them is dated 12 February 2025 – later than the other materials in the final Dossier. In their first (undated) submissions, his solicitors stated that the Claimant “is complying with the regime since recall” – not a statement they are likely to have made without further elaboration if they were aware of the alleged threats of violence against prison officers. The facts that such apparently serious misconduct had resulted only in a “behaviour warning” and that the Claimant had been granted enhanced status were indicators that the Claimant might well dispute what occurred or have explanations to give that could cast a different light on the two incidents.

Even at the Rule 19 stage therefore, fairness required that the Claimant be given an opportunity to deny or explain this alleged misconduct. Then, at the Rule 20 stage, the Claimant’s solicitors put forward an express denial that he had threatened violence.

The negative entries made a material contribution to the decision not to re-release the Claimant. The MCA relied on them, along with his conduct while on licence, to conclude that “there had been little or no real change in the underlying attitudes Mr Ford holds which contribute to his offending behaviour”. They were not peripheral matters and fairness required that the Clamant be given an opportunity to deny or explain them at an oral hearing, where his credibility could be assessed: see Osborn principles (ii) (a) and (c). The Claimant’s Rule 20 representations placed in serious question this aspect of the paper decision: Osborn principle (ii)(d). The fact that, at an oral hearing, this might come down to the Claimant “saying one thing and an officer saying another” is a positive reason to hold a hearing, not for refusing one (as the writer of the Rule 20 decision held).

As to the circumstances surrounding the Improvement Plan Meeting on 20 January 2025, plainly, whether the Claimant was in fact on a mentoring programme for which he had an appointment on 20 January 2025, whether he raised his diary clash in a timely manner, whether he was in fact instructed that he need not attend, and whether the meeting was in fact rearranged for 24 January 2025 prior to the recall decision being made all have a significant bearing on whether his recall was unfair or premature. The writer of the MCA is dismissive of the Claimant’s case, plainly doubting his credibility. Fairness required that his account should be tested orally: again Osborn principle (ii)(a) is pertinent.

Third, Ms Beach relies on comments made by Mr Williams in the Part B Report concerning the Claimant’s psychological and cognitive issues and the need for “some form of intervention in custody to develop the skills that will help him to comply with any future licence conditions”. As Osborn principle (ix) makes clear, it is necessary to consider not just whether fairness requires an oral hearing for the purpose of resolving the immediate question of whether to release a prisoner, but also for the purpose of considering what should be said about his future management in prison (if he is not released) and about what might be done to improve his prospects of securing his release in the future.

In my judgement, the extracts from the psychological reports highlighted by Mr Williams did make this a case where the Claimant’s characteristics, and his attendant needs for treatment or offending behaviour work, would be best judged by seeing or questioning him in person: Osborn principle (ii)(b) is pertinent.

Fourth, Ms Beach relies on Osborn principle (iv), i.e. “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”. I agree that the principle is in play here. The Claimant made personal written submissions in which he stressed the positive steps he had been taking, during his short time on licence, to rebuild his life in the community. The Board was sceptical and dismissive about these points. He has something useful to contribute to a hearing by expanding on these issues and demonstrating - if he can – the sincerity of his commitment (as well as clarifying or explaining the disputed issues of fact). Without an oral hearing, he could legitimately feel aggrieved that his case has not received the fair consideration it deserves. I was referred to a statement of HH Roger Kaye QC in a Parole Board decision called Cook [2019] PBRA 28, where he said “every applicant needs to feel that his case has been given fair, proper, and anxious scrutiny and his evidence, representations and arguments properly taken into account (even if not accepted).” Those observations are particularly pertinent to the Claimant who, having gained his liberty after so long in custody in excess of his tariff, saw it taken away again scarcely more than a month later in circumstances that are disputed and which he considers unjust.

As explained in Osborn at [113], a failure to comply with the common law duty of fairness will also mean that the Board has failed to act compatibly with Article 5(4) ECHR, in breach of its obligation as a public authority under section 6(1) of the Human Rights Act 1998. Accordingly, Ground 3 is also made out.

Since I have found for the Claimant on Grounds 1 and 3, Ground 2 is academic. It raises some difficulties since it is not entirely clear which set (or sets) of reasons the Court should be considering: the Rule 19 reasons, the Rule 20 reasons, the Rule 28 reasons or a combination of these. I therefore decline to make a finding on Ground 2.

I allow the claim on Grounds 1 and 3. The decision that the Claimant is not suitable for release is quashed and the matter is to be remitted to the Board to consider at an expedited oral hearing. I have indicated that I will receive written submissions on costs.