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

This case concerns the circumstances in which an oral hearing will be arranged by the Parole Board when considering the termination of a licence under a sentence for imprisonment for public protection (“IPP”) pursuant to section 31A of the Crime (Sentences) Act 1997 (“the 1997 Act”). The Claimant, Jonathan Hanson, is challenging the decision of the Parole Board not to direct an oral hearing in his case.

Permission to proceed with this judicial review was granted by Norton J on 5 January 2026. The claim was initially directed to be heard together with a claim brought by Nathan McIntosh. That case is now stayed behind the present claim.

At the hearing of the judicial review application, the Claimant was represented by Jude Bunting KC; and the Defendant to the claim, the Parole Board, was represented by Tom Little KC and Thomas Jones. The Secretary of State for Justice was not represented and did not appear.

The IPP sentence was introduced by section 225 of the Criminal Justice Act 2003. The IPP sentence was an indeterminate sentence imposed on conviction for a specified category of violent or sexual offences where the sentencing judge thought there was a significant risk of serious harm to members of the public by commission of further specified offences. The prisoner was required to remain in custody until the end of the minimum term, or tariff, at which stage they became eligible for release following a direction from the Parole Board: see section 28(5) of the 1997 Act. Release was directed where the Parole Board was satisfied that it was no longer necessary for the protection of the public that the prisoner be confined: see section 28(6) of the 1997 Act.

Release was on life licence: see section 31 of the 1997 Act. Pursuant to section 32(1) of the 1997 Act, the Secretary of State could recall an IPP prisoner for breach of licence conditions, and that individual could only be re-released on direction by the Parole Board: see section 32(5) of the 1997 Act. When the IPP sentencing regime was first introduced, the Parole Board could direct that a licence should cease to have effect – that is, it could be terminated -- if it was no longer necessary for the protection of the public after the expiry of a qualifying period of ten years following release: see section 31A of the 1997 Act.

Concerns about the IPP sentence and the harmful effects that they have had on many IPP prisoners have been widely articulated. IPP sentences were abolished for future offending by section 123 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. For those still serving IPP sentences, the regime was revised.

From 1 November 2024, the qualifying period to refer an IPP licence to the Parole Board for its termination was reduced from ten years to three years from the initial release of the prisoner: section 31A(5) of the 1997 Act (introduced by section 66(3)(e)(i) of the Victims and Prisoners Act 2024). This qualifying period will be reduced to two years from the initial release of the prisoner if and when section 42 of the Sentencing Act 2026 comes into force.

There is now a statutory presumption that the Parole Board will terminate the IPP sentence at the end of the qualifying period: section 31A(4) and (4F) of the 1997 Act. The presumption is reversed if the Parole Board is satisfied that “it is necessary for the protection of the public that the licence should remain in force”.

IPP licences will automatically be terminated by the Secretary of State two years after the expiry of the qualifying period: section 31A(4H) of the 1997 Act. This does not apply, however, where the offender has been recalled to prison during the two year period, although the Secretary of State has the power to treat the licence as if it had remained continuously in force if it is in the interests of justice to do so: sections 32(5C) and (5D) of the 1997 Act.

The effect of these provisions is that if the offender has been on licence in the community continuously for two years following their Parole Board review they will obtain an automatic termination of their licence. If there was a break in the licence in the community, for example, due to being recalled, the clock will reset, and the two years needed for automatic termination will start from the offender’s next release from prison. However, if the Secretary of State decides it is in the interests of justice to do so, the interruption to the two-year period can be disapplied and the licence will be treated as if it remained in force for the purpose of the automatic termination period.

The Secretary of State has made rules for the carrying out of the Parole Board’s functions: see Parole Board Rules 2019/1038. Rule 31 concerns the termination of an IPP licence:

“Where the Secretary of State makes a reference for an offender's licence to be terminated under section 31A of the 1997 Act, the Secretary of State must serve any reports or evidence at the same time as making the reference to the Board.

. . .

(4)

Where the Board receives a reference, a panel appointed under rule 5(5) must consider the application in accordance with section 31A(4) of the 1997 Act.

(5)

In considering the reference, the panel may—

(a)

make a decision on the papers, or

(b)

direct that the reference should be decided by a panel at a hearing.

(6)

Where a panel considers the reference on the papers or at a hearing, it must decide to—

(a)

terminate the offender's licence;

(b)

dismiss the reference, but amend the offender's licence in accordance with section 31(3) of the 1997 Act, or

(c)

dismiss the reference.

(6A)

Where the reference has been made for an offender who is in prison having been recalled under section 32 of the 1997 Act, the panel must consider the reference in accordance with section 31(4F) of that Act.

(7)

The decision under paragraph (6) or (6A) must—

(a)

include the reasons for that decision; and

(b)

be provided to the offender and the Secretary of State within 14 days.

(7A)

Any decision made by the panel under paragraphs (6)  or (6A) is provisional, and becomes final if no application for reconsideration under rule 28 is received within the period specified by that rule.”

It can be seen, therefore, that

Rule 31(7A) allows for reconsideration of the panel’s decision. The procedure for this is governed by rule 28 which provides that an application for reconsideration can be made on the basis that the decision “(a)  contains an error of law; (b)  is irrational; or (c)  is procedurally unfair” (rule 28(1)). The application is considered on the papers by an assessment panel (rule 28(5)) which must direct reconsideration or dismissal of the application (rule 28(6)). Reconsideration can only be directed where one of the grounds for reconsideration at rule 28(1) is identified (rule 28(7)). Where the application is dismissed, the provisional decision of the panel becomes final (rule 28(8)). Where it is directed, reconsideration can take place on the papers or at an oral hearing (rule 28(9)).

The Parole Board has made guidance for its members who deal with IPP matters: Imprisonment for Public Protection Member Guidance (“the Member Guidance”).

The executive summary to the Member Guidance notes some key concerns about the IPP sentence:

“Key Concerns (Section 4):

• Injustice of the sentence: It has been repealed and is considered unfair.

• Hopelessness: The lengthy periods of imprisonment and uncertainty over release has led to significant concerns for these individuals, particularly in relation to their mental health.

• Self-harm and suicide: There is evidence of profound levels of psychological harm caused by IPP sentences, including evidence of high levels of self-harm and suicide rates.

• System capacity: The context of prison capacity and prison-based barriers to IPP sentence progression.”

The executive summary also refers to “Licence Terminations (Section 12-18)”, and the right of IPP sentenced prisoners to have their IPP licence considered for termination. The executive summary and sets out in bold that:

“Directions to oral hearing should only be required in exceptional circumstances.”

The Member Guidance explains that, as at 30 January 2025, there remained 2,614 IPP prisoners in custody, and 1,357 individuals who were on an IPP licence in the community.

The Member Guidance deals at paragraph 15 with the IPP Licence Termination Dossier. This includes the following:

“15.3

The COM [Community Offender Manager] must contact the IPP-sentenced individual to discuss the termination referral and ascertain their views. They must then complete a Termination of IPP/DPP Licence report and disclose it to the individual who must be given seven calendar days to submit representations. The individual can write their own representations or seek legal advice and assistance with writing their representations and appoint a lawyer or other person to represent them (legal aid may be available for this work where the individual meets the criteria).

. . .

15.6

The COM will provide a recommendation about the termination of an IPP licence within their report, rather than a professional opinion. The report must contain a clear recommendation about whether termination of the individual’s licence is supported, and a clear rationale for that decision giving thorough consideration also to any concerns raised by the victims and/or VLO. The report should be approved by the Region’s IPP Progression Panel or, where this has not been possible, directly by the Regional Head of Service.

15.7

Where the COM is not recommending terminating the licence they should include information about suspending supervision (if still in place) and any other changes to the licence that are considered necessary and proportionate.”

Paragraph 16 of the Member Guidance is entitled “Considering the Referral”. At paragraph 16.2, panel members are reminded that:

“If the individual is in the community, there should only ever be one referral to consider the termination of licence at the eligibility point. Where the licence is not terminated, it will progress to automatic termination after the qualifying period and not come back to the Board (unless the individual is recalled during the qualifying period)”.

Further guidance within paragraph 16 is as follows:

“16.7

It is expected that the majority of decisions about licence terminations will be concluded on the papers.

. . .

16.9

If there is sufficient information to make a decision on the papers, the panel can, under rule 31(6):

a)

Terminate the individual’s licence

b)

Dismiss the reference but amend the individual’s licence in accordance with section 31(3) of the 1997 Act

c)

Dismiss the reference (the licence is neither terminated nor varied)

16.10

The panel will need to consider the matter of the licence termination first. It is only where the panel decide not to terminate the licence that consideration should move onto whether the licence should be varied, including any matter relating to the suspension of supervision.

16.11

The referral may set out other conditions to amend, remove or add. The panel can, of its own volition, consider whether the conditions on the existing licence are still necessary and proportionate to manage risk. A panel can vary a licence as needed i.e., remove, amend, or add conditions even where the referral does not make any such request. These can be undertaken under powers to make licence variations.

16.12

The key consideration is whether changes are necessary and proportionate to protect the public. It must be clear within the body of the panel’s decision the reasons for amending the licence.

Under a sub-heading “Directing an oral hearing when the individual is on licence”, paragraph 16 includes the following (with the bold wording in the original text):

“16.18

Whilst rule 31(5) does permit a panel to direct an oral hearing, this should only be required in exceptional circumstances. Exceptional circumstances might include critical disputes of fact, vulnerabilities, or mental health or cognitive functioning which is particularly complex and relevant to risk.

16.19

When deciding if an oral hearing is required panels are advised to consider that paragraph 2(i) of the judgment in Osborn, giving the basis of the UK Supreme Court’s decision, says that fairness may require a hearing when a panel is “…determining an application for release, or for a transfer to open conditions…”. Licence termination is neither of these. As the referral is confined to the question of licence termination Osborn principles do not apply.

16.20

If an oral hearing is considered necessary to properly consider the matter, then directions will need to be issued on a Duty Member Form. Directions for an oral hearing should be set (any additional documents, witnesses etc) and the Secretary of State should be directed to secure a suitable location for the oral hearing to take place, where the individual is in the community.”

The reference to “Osborn” is to Osborn v Parole Board [2014] AC 1115.

In September 2025, the Parole Board issued a Practice Update with respect to IPP Licence Termination Referrals. This stated under the sub-heading “Osborn” that:

“Panels should continue to follow the current advice regarding Osborn until further notice: In paragraph 2(i) of the judgment in Osborn, giving the basis of the UK Supreme Court’s decision, it says that fairness may require a hearing when a panel is “…determining an application for release, or for a transfer to open conditions…”. Licence termination is neither of these. Where the referral is confined to the question of licence termination, Osborn principles do not apply.”

Mr Hanson received an IPP sentence on 6 March 2009, when he was 18 years old, following his conviction for two counts of possession of a firearm with intent to endanger life, two counts of possession of a prohibited weapon, and two counts of possession of ammunition. He was sentenced as a “driver”; with the sentencing judge accepting that he was “probably not one of those who was going to pull the trigger on either of those guns”. Mr Hanson’s tariff was set at 54 months, expiring on 19 October 2012. In January 2019, Mr Hanson was released on licence. In June 2020, Mr Hanson’s licence was revoked by the Secretary of State and he was recalled to custody.

On 27 August 2024, following an oral hearing, a panel of the Parole Board directed Mr Hanson’s re-release. None of the professionals who gave evidence to the panel thought that there was any further core risk reduction work for Mr Hanson to do in prison. The panel stated that the case was “finely balanced”, and that it was particularly influenced by Mr Hanson’s oral presentation at the hearing, stating that:

“The panel found Mr Hanson’s own evidence, given in a thoughtful, if careful, manner, to be persuasive demonstrating a candid insight into his past, his present situation and what he sees as his future. The panel, whilst wary of possible impression management, found Mr Hanson’s evidence to be indicative of a genuine desire to desist from criminal behaviour. He gave a good account of himself and has insight into his risks. He has developed the necessary tools and strategies to manage them. The panel considered there was evidence of a genuine desire to desist from criminal behaviour. Of course, the challenge for him will be to actually do that and seek help, if necessary, should his risks become active, and so avoid making the mistakes he has made in the past. In the panel’s view Mr Hanson evidences a clear reduction in risk, though he will have to maintain his commitment to being open, honest, candid, and transparent to avoid misleading professionals with untruths whatever the circumstances.”

Following Mr Hanson’s release into the community, the Secretary of State applied for the termination of Mr Hanson’s IPP licence on 24 February 2025. The probation team working with Mr Hanson supported the application for termination. The senior probation officer indicated that Mr Hanson “has been doing well following his release, engaging with all appointments, maintaining an open and transparent dialogue, and has demonstrated a shift in his attitudes / thinking. Mr Hanson has been vocal and has been in contact with Probation at the first instance, if there have been any concerns.” The senior probation officer assessed that there had been “a shift from previous behaviour”, and that Mr Hanson now accepted that his previous lifestyle reflected “an element of grooming from more older and sophisticated peers when he was 14 years old. This is something he struggled to accept and recognise but Mr Hanson, through his own admission, has now recognised that there was exploitation.” The senior probation officer also indicated that Mr Hanson had:

“demonstrated internal controls, for example, reflecting on negative associations, the circumstances which lead to the recall and wanting to build a positive rapport with those involved. To his credit, he has done this and has continued to engage with Probation. He recognises that previously; his perception of others was clouded as sometimes he felt ‘under attack’ by professionals and vulnerable so wasn’t open. His ability to reflect on those things has made him realise that he needs to be more open if he wants to get through his Licence period successfully. He has spoken about using tools and skills learnt from programmes, such as, the snowball effect and red flag scenarios. He has shown insight into looking up to the ’wrong people’ when he was young, and how this has changed as he has become older. It’s positive that throughout conversation, he understands that the circumstances which led to recall was around him dipping in engagement and accepting that he had started to associate with negative peers. We have spoke around being deceitful as this is something which has featured in previous engagement. My assessment is that this is a habit he got into from a young age, and when he was exploited by more sophisticated peers, being deceitful made him feel rewarded. He understands and recognises that as he matured that this has not helped him in any way shape or form. There has been no indication of Mr Hanson being deceitful since his release in 2024 and he has shared information around relationships (intimate) and when he has had any concerns around seeing negative associations. During the time I managed Mr Hanson in custody, I did notice a shift in his thinking and my assessment is that he has used the four-year recall in custody to reflect on his actions, his lifestyle and the goals that he has for the future.”

The head of service and another senior probation officer supported the recommendation for termination of Mr Hanson’s IPP licence. The community offender manager explained that Mr Hanson had “demonstrated a high level of maturity and patience being able to communicate his concerns” and she assessed “a significant shift in his thinking and behaviour.”

On 27 February 2025, a solicitor instructed by Mr Hanson submitted written representations in support of the application for termination of his IPP licence. It was contended that there was no basis to rebut the presumption in favour of termination: Mr Hanson had not reoffended, had strong community support and had taken proactive steps towards his rehabilitation. It was submitted that “in the interests of justice”, an oral hearing should be directed in the event that the panel was not in a position to terminate the licence on the papers.

On 10 March 2025, the panel (made up of a single member) refused the application to terminate Mr Hanson’s licence on the papers. The written decision contained an account of Mr Hanson’s offending, a detailed account of Mr Hanson’s conduct following release and recall to custody, and an account of his activities following re-release, as well as an analysis of the manageability of risk posed by Mr Hanson. At paragraph 3.3 of the panel’s decision it was stated that:

“The panel considered the risk assessments provided and the evidence of progress and stability since Mr Hanson was released in October 2024. The panel gives credit to Mr Hanson and the apparent shift in his attitude and approach towards openness and honesty with professionals. It would appear that his risk are reducing. However, there have been a number of concerns during the last twelve months and the panel is mindful of the slip into complacency that saw him placed in a highly risky situation, at the time of the first recall, resulting in Mr Hanson sustained serious injuries. In this context, the panel would wish to see a longer period of stability before the assessed risk levels were reduced and agreed with the risk assessments provided.”

In the panel’s conclusion, it was stated that:

“4.1

Mr Hanson’ case has been referred to the Parole Board for consideration of the termination of his IPP licence. Under the Victim and Prisoners Act 2024, the starting point is a presumption of termination.

4.2

Mr Hanson was first released in January 2019 and his licence revoked 18 months later in June 2020 when he was arrested for an offence of affray. An incident at taken place at the ‘Manor House’ venue where a fight took place and there were reports of gunshots being heard and someone being stabbed. Mr Hanson had been stabbed but would not provide an account of how this came to be. Mr Hanson admitted that he had become complacent regarding his licence but denied that he had been “getting up to anything”.

4.3

Mr Hanson’s first review following his recall did not result in re-release. He was re-released in October 2024, following an oral hearing in August 2024. The panel of 2024 described a ‘finely balanced decision’ in directing his release. They determined that all directed licence conditions were both necessary and proportionate to managing his risks in the community.

4.4

Mr Hanson was released on 1 October 2024 and is reported to have engaged well. The author of the termination report has known Mr Hanson for a number of years and identified a noticeable shift in his attitude and approach to the authorities. The panel gives him credit for this.

4.5

However, the panel is concerned that these changes are relatively recent and that further time is required to establish if they are truly embedded and resilient in the face of adversity and challenge in the community. Mr Hanson’s GPS trail monitoring was set to remain in place until April 2025 and the current stability is yet to be tested in the community once this monitoring has been lifted. The panel was mindful that Mr Hanson’s first recall came some 18 months after release when, Mr Hanson himself accepted, he had become complacent. Additionally, a number of services identified as important for the robustness of the risk management plan, have not been available.

4.6

Given the seriousness of Mr Hanson’s past offending, the relatively short time he has been in the community and the lack of some key aspects of the risk management plan, the panel was not confident that there was a “no more than minimal risk” that Mr Hanson might commit a further offence. The panel concluded that it was necessary for the protection of the public that his licence remained in place.

4.7

Representations requested the termination of the licence or an oral hearing. As detailed in the paragraphs above, the termination of licence is not considered appropriate at this time. In respect of an oral hearing, the panel did not find any reasons why one might be necessary the dossier containing all the evidence necessary upon which to determine Mr Hanson’s case.

4.8

In relation to the possibility of the suspension of supervision, for the same reasons provided in relation to the termination of licence, the panel considered it necessary, for the protection of the public, that supervision remained in place.

4.9

A number of licence conditions are to be removed as they are no longer applicable and therefore do not meet the test of necessary and proportionate.”

(Emphasis added).

The licence conditions that were removed related to Mr Hanson staying at approved premises. It was explained in the decision that Mr Hanson had already moved out of those premises to a suitable address with his family as two other gang nominals had been placed at the same approved premises.

Paragraph 4.7 of the panel’s decision (highlighted above) appears to have some words missing. It is likely that it should say something like “In respect of an oral hearing, the panel did not find any reasons why one might be necessary in light of the dossier containing all the evidence that was necessary . . . to determine Mr Hanson’s case”. My analysis of the panel’s decision is based on this reading of what was intended to be said.

On 28 March 2025, Mr Hanson applied for reconsideration of the decision refusing to terminate the IPP licence. In representations made by his solicitors, it was stated that the decision was “procedurally unfair in light of the facts, the statutory framework, and the relevant legal principles ... [It] denies Mr Hanson a fair hearing in circumstances where fairness required one to be held.” It was said that Mr Hanson had asked for an oral hearing if termination could not be directed on the papers and this should have been arranged. An oral hearing was said to be appropriate as “the stakes were high and facts were contested”. In particular, it was contended that:

“The panel’s decision relies on concern that changes in Mr Hanson’s behaviour may not yet be fully tested, yet it denies Mr Hanson the opportunity to respond to that concern in person, to give evidence of his insight and current mindset, or to address the panel’s doubts directly”.

The representations also stated that that there were four reasons why it was procedurally unfair not to direct an oral hearing, mirroring the reasons specified by Sir Stephen Silber in a different reconsideration application (Church [2024] PBRA 66):

“Firstly, the MCA member should have found it necessary to hear oral evidence regarding the concerns “raised during the last twelve months and the slip into complacency that saw Mr Hanson placed in a highly risky situation, at the time of the first recall” since it is this led the MCA member to disagree with the assessment of the Probation Service. Mr Hanson has not been given the opportunity to present his case fairly, nor has he been given the opportunity to explain his commitment to leading a pro-social lifestyle.

Secondly, Mr Hanson’s risk cannot be properly assessed without an oral hearing, given the difference in opinion between the MCA member and the Probation Service.

Thirdly, Mr Hanson’s tariff expired 12 years ago so anxious scrutiny needs to be applied to his case.

Fourthly, this is not a clear case for not having an oral hearing and, as explained in the Osborn, Booth & Reilly case, this means that it is “prudent” to allow an oral hearing.”

On 28 April 2025, a member of the Parole Board refused Mr Hanson’s request for reconsideration: see [2025] PBRA 86. On the substance, it was stated at [46] that:

“The panel had noted that the termination of the IPP licence would leave the Applicant responsible for his own risk management. It was not unreasonable for it to consider it premature for him to be relied upon to do this given that he had only been back in the community for a short time. It was reasonable to conclude that further testing of the Applicant would be necessary prior to establishing that the IPP licence could come to an end.”

With respect to the allegation that the failure to hold an oral hearing constituted procedural unfairness, the member of the Parole Board stated that:

“47.

The principal authority relied upon by the Applicant in his challenge that an oral hearing should have been directed is the Supreme Court in the case of Osborn (2013) UKSC61. This is the leading case on the topic and has been followed and applied in many subsequent cases. These decisions were concerned with cases where the offender was in prison seeking release or a progressive move to an open prison. The Applicant’s case is concerned with an offender serving an IPP sentence who has been released on licence and is seeking termination of his licence. That is a different situation from the case of Osborn. Osborn does not apply directly to licence termination cases.

48.There is of course an underlying principle of fairness and that may require an oral hearing in some cases. The panel in this case did not believe that fairness required that there should be an oral hearing and I am satisfied that it was fully justified in that conclusion. There had been an oral hearing in August 2024 and issues about the Applicant had been carefully considered at that review. This led to the Applicant’s release and the decision directing his release was reviewed by the panel considering termination of the IPP licence.”

In this judicial review claim, Mr Hanson challenges (i) aspects of the Member Guidance of the Parole Board, as well as (ii) the specific decision of the member of the Parole Board, who determined the reconsideration application, that the review of the IPP licence termination application was procedurally fair and did not require an oral hearing.

With respect to (i), Mr Hanson contends that there is no justification for applying a test of exceptionality for oral hearings in this context. The sole question is what fairness requires. The guidance is also unlawful insofar as it seeks to suggest that “Osborn principles do not apply”.

With respect to (ii), Mr Hanson contends that the decision not to hold an oral hearing in his case, and the subsequent reconsideration decision to uphold that decision, were unlawful. Fairness plainly required an oral hearing.

The Parole Board resists ground (i), and claimed neutrality on ground (ii).

Mr Bunting KC, for the Claimant, submitted that the Parole Board had acted unlawfully in stating in the Member Guidance that an oral hearing would only be required for IPP licence termination decisions in “exceptional circumstances”, and for saying that Osborn principles did not apply to such decisions. Mr Bunting KC contended that these statements fell within categories (i) and (iii) of the taxonomy of unlawful policy statements identified by the Supreme Court in R(A) v Secretary of State for the Home Department [2021] 1 WLR 3931 at [46].

Categories (i) and (iii) are as follows:

“(i)

where the policy includes a positive statement of law which is wrong and which will induce a person who follows the policy to breach their legal duty in some way”; . . . and (iii) “where the authority, even though not under a duty to issue a policy, decides to promulgate one and in doing so purports in the policy to provide a full account of the legal position but fails to achieve that, either because of a specific misstatement of the law or because of an omission which has the effect that, read as a whole, the policy presents a misleading picture of the true legal position”.

Mr Bunting KC submitted that there was no legal basis for oral hearings only to be directed in “exceptional circumstances”. Rather, each case needed to be considered on its own facts applying the test of fairness at common law, having regard to the interests at stake. In this regard, Mr Bunting KC referred the Court to R (Smith and West) v Parole Board for England and Wales [2005] 1 WLR 350, in which Lord Bingham outlined the kinds of situations which may call for an oral hearing of a decision to recall a prisoner who was on licence at [35].

Mr Bunting KC also referred to what Lord Hope had said in Smith and West at [66] with respect to the Parole Board’s institutional reluctance to deal with certain cases at oral hearings, leading to decisions being based on “assumptions”. Mr Bunting KC submitted that there were echoes of that reluctance in the present case, noting that the evidence from the Parole Board was that between 1 February 2025 and 1 February 2026, the Parole Board had made 734 final decisions about terminating IPP licences; of those, 351 licenses were terminated. In that period, only 4 IPP licence termination requests had been directed to take place at an oral hearing. Mr Bunting KC suggested that this demonstrated that Parole Board members were applying the “exceptional circumstances” test literally.

Mr Bunting KC submitted that there was no basis for the Member Guidance to say with respect to decisions on the termination of an IPP licence that “Osborn principles do not apply”. Mr Bunting KC contended that the guidance set out by Lord Reed in Osborn was not limited to ‘release’ or transfer to open conditions decisions, but applied to all aspects of Parole Board decision-making including termination of IPP licence decisions.

Mr Bunting KC submitted that there were good reasons why an oral hearing should take place when licence termination decisions were made. First, the individual is still serving an IPP sentence even though they would be residing in the community. Second, the licence conditions could be stringent – in the present case, Mr Hanson had been subject to an overnight curfew to remain at approved premises, subject to monitoring; there was a prohibition on him contacting certain individuals and entering certain areas without prior approval; there was a requirement to wear an electronic monitoring tag; and he was subject to trail monitoring, by which his whereabouts were monitored for 6 months by GPS Satellite Tagging. Mr Bunting KC submitted that these conditions amounted to ‘imprisonment’ at common law (see R (Jalloh (formerly Jollah)) v Secretary of State for the Home Department [2021] AC 262), although he accepted that they did not amount to the deprivation of liberty for the purposes of Article 5 of the European Convention of Human Rights.

Third, there was a sense of injustice among persons serving IPP sentences, comparing their situations to those convicted for the same offence after IPP sentences had been abolished. Fourth, IPP sentences created hardship, with individuals feeling hopeless about the future as they could easily be recalled, leading to many cases of self-harm and suicide. Fifth, in some cases, the release and termination decisions would be taken at the same time, and the release decision will usually be made at an oral hearing. Sixth, individuals serving an IPP sentence may face procedural hurdles: they may have complex needs, literacy issues, and not have legal representation.

These submissions were resisted by Mr Little KC for the Parole Board. Mr Little KC submitted that there were various reasons why the Member Guidance was lawful and did not fall within categories (i) or (iii) in R(A) at [46]. First, the termination of a licence decision would involve an IPP sentenced prisoner who is in the community and may well have had an oral hearing at the release stage; and at the release stage, the Member Guidance directs the Parole Board to the Osborn principles. Second, the starting point for the licence termination decision is the statutory presumption of termination: this means that it would be less pressing for there to be an oral hearing, and was different from the release situation. Third, the IPP licensee’s submissions are always sought and taken into account even if there is no oral hearing. Mr Little KC submitted that the effect of these three factors was that the demands for procedural fairness will fall at the lower end of the spectrum.

Fourth, Mr Little KC submitted that whilst the Member Guidance states that the circumstances calling for an oral hearing will need to be “exceptional”, a non-exhaustive list of examples of when that might apply is given, and it can be seen that exceptionality was not defined in a particularly narrow way. Indeed, Mr Little KC submitted that those examples were reflective of the factors referred to in Osborn which pointed towards an oral hearing.

Fifth, Parliament has entrusted the decision as to whether an oral hearing should be called for to the Parole Board members themselves and their “intuitive judgment” should be respected. Mr Little KC said that the Court should be cautious about imposing judicial procedures into administrative decision-making, relying on R (Venables) v Secretary of State for the Home Department [1998] AC 407 at 503C.

With respect to the reference in the Member Guidance to the Osborn principles, Mr Little KC submitted that it was not a misstatement of the law to note that the principles in that case did not apply to termination of licence decisions, given that Osborn was a case relating to procedural fairness for incarcerated prisoners - whether they should be released or transferred to open conditions within the prison estate – and not those, like Mr Hanson, who were on licence in the community.

In any event, Mr Little KC pointed out that it was well understood by members of the Parole Board that principles of fairness did need to be considered when deciding whether or not to hold an oral hearing. This was reflected in the reconsideration decision in the present case. It was also reflected in the parallel case of Mr McIntosh where, in determining the application for reconsideration, it had been stated that “Osborn and the other cases do not apply directly to licence termination cases. The underlying principle of fairness may however, in some such cases, require a single member panel to direct that the case should proceed to an oral hearing”: see [2025] PBRA 70 at [51]

Mr Little KC also reminded the Court that a distinction should be drawn between cases where there was a deprivation of liberty – incarceration cases – which falls within Article 5 of the European Convention of Human Rights, and those where there are restrictions on liberty which fall outwith Article 5.

Mr Bunting KC submitted that the refusal to afford Mr Hanson an oral hearing was unlawful as it was predicated on the unlawful policy (ground 1).

Mr Bunting KC submitted that the refusal was also unfair in any event, relying on a number of features of Mr Hanson’s case. First, the IPP sentence was imposed on Mr Hanson when he was 18 years old, for offences committed when he was 14 and under the influence of grooming and exploitation; it was a classic example of a case where maturation and development was crucial, and one of the categories of case calling for an oral hearing in Osborn at [104] – [112].

Second, the central issue for the decision-maker considering the termination of the IPP licence was the extent to which Mr Hanson had internalised the change found by the Parole Board panel which had directed his release. The decision-maker found that the “changes are relatively recent” and that “further time is required to establish if they are truly embedded and resilient”. Mr Bunting KC submitted this issue called for an oral hearing, as the proper assessment could best be judged by seeking or questioning Mr Hanson in person.

Third, the Parole Board panel which had directed Mr Hanson’s release had been impressed by his oral presentation and that had tipped the decision in favour of release in what was otherwise a “finely balanced” case. This showed why hearing directly from Mr Hanson was so important. Fourth, there was a need to have particular regard to the potential impact of an unfair decision on Mr Hanson, given that he is a young man whose previous relationship with authority had been one of distrust.

Fifth, insofar as the decision-maker rejected the evidence from the probation team working with Mr Hanson, this was a dispute of fact which called for an oral hearing. Sixth, the IPP licence conditions interfered with Mr Hanson’s liberty at common law; and the key challenge posed by the Parole Board when he was released was whether he could desist from criminal behaviour and apply strategies to manage his risks in the community.

Mr Little KC argued that the Parole Board (as is typical in challenges to the actual decision of the Parole Board) remained neutral on this ground of challenge. To assist the Court, however, he pointed out that the termination decision was taken within a matter of months from Mr Hanson’s release into the community, and the release decision had been taken after an oral hearing. Further, whilst the recommendation of the Probation Service was for termination, their report indicated that Mr Hanson presented a risk of serious harm and identified previous occasions where Mr Hanson had been recalled to prison.

Mr Little also drew the Court’s attention to what was said in the decision refusing the application of reconsideration. Mr Little KC said that the statement that “Osborn does not apply directly to licence termination decisions” was correct, but this did not mean that the decision-maker was saying that the principles within Osborn were not relevant at all. Indeed, the decision-maker had recognised that the underlying principles of fairness may require an oral hearing “in some cases”, and did not use the language of “exceptional circumstances”.

Mr Little KC also said, in answer to a question from the Court, that it was highly likely that the same decision not to hold an oral hearing would have been made by the Parole Board even if the Member Guidance was different. In written submissions provided to the Court after the hearing, Mr Bunting KC argued that this was not an appropriate case in which the Court should apply the provisions of section 31(2A) of the Senior Courts Act 1981. Among other things, Mr Bunting KC pointed out that the Court did not have before it a full, accurate and clear explanation of the decision-making process used by the decision-maker in witness statement form, relying on R (Greenfields (IOW) Limited) v Isle of Wight Council [2025] PTSR 2013 at [102]-[106].

The starting point for considering this claim is to examine the principles of procedural fairness and determine how those principles apply to Parole Board decisions to terminate an IPP licence.

In their skeleton argument for these proceedings, Mr Little KC and Mr Jones explained that there are “no rigid or universal rules as to what procedural fairness demands in any given context. The content of the duty of procedural fairness depends on the particular functions of the public body and the context and circumstances of its decision.” I agree.

This point was clearly made by Lord Mustill in the well-known passage in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531, 560, where he stated that what fairness requires in any particular case will depend on the circumstances and may change over time. What fairness requires is essentially an “intuitive judgment”, and that:

“The principles to be derived from the authorities are (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”

Similarly, in Pathan, Lady Arden stated at [55], the particular requirements of procedural fairness are “adaptable to the environment in which it is applied”; and in R (Pearce) v Parole Board [2023] AC 807 at [66], Lord Hodge and Lord Hughes stated that “The duty of procedural fairness is a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case.”

The Supreme Court in Osborn considered the requirements of procedural fairness, focusing specifically on the case of a determinate sentence prisoner who had been released on licence and then recalled to custody, and of two cases concerning indeterminate sentence prisoners who had served their minimum terms. At [2], Lord Reed set out a summary of his conclusions. At [2(i)], Lord Reed stated that:

“In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake.”

The subsequent sub-paragraphs set out the different circumstances which would be relevant to the Parole Board in deciding what fairness demanded in any given case which fell within sub-paragraph 2(i): that is, applications for release or transfer to open conditions. In formal jurisprudential terms, therefore, the ratio decidendi of Osborn related to the requirements of procedural fairness in those specific categories of case.

That does not mean, however, that Lord Reed’s articulation of the principles of procedural fairness throughout the decision in Osborn has no relevance to other decisions made by the Parole Board, or indeed for other public law decision-makers. Indeed, in Pathan, a case concerning immigration law issues, Lady Arden referred approvingly at [48]-[52] to Lord Reed’s analysis of the underlying values served by procedural fairness.

Accordingly, I consider that in all cases involving the Parole Board where questions of procedural fairness arise, proper regard should be had to what Lord Reed had to say about the underlying values served by procedural fairness. At [67], Lord Reed identified the utilitarian value of procedural fairness, saying that “There is no doubt that 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.”

At [72], Lord Reed identified what was described by Lord Hoffman in Secretary of State for the Home Department v AF (No 3) [2010] 2 AC 269, as “the avoidance of the sense of injustice which the person who is the subject of the decision will otherwise feel.” Lord Reed explained the reason for that sense of injustice as being that:

“justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken.”

A further value served by procedural fairness that was identified by Lord Reed at [71] was 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”.

There are also other aspects of Lord Reed’s “general guidance” in Osborn at [80]-[96] that are of relevance to the Parole Board when considering what procedural fairness may require in cases other than release or transfer of prisoners.

Thus, at [81], it was stated that “Generally, the board should hold an oral hearing whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and . . . the importance of what is at stake. The board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.” This is clearly of wider application.

At [82], Lord Reed said that:

“The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoners legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. 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.”

This is clearly of wider application.

At [85], Lord Reed stated that:

“an oral hearing is required when facts which appear to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally if it is to be accepted.”

At [86], Lord Reed stated that:

“An oral hearing is also necessary when for other reasons the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend on the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist.”

These matters are clearly of wider application.

Against this background, I consider that the Member Guidance contains some incorrect statements of law, or presents a misleading picture of the true legal position, which is bound to induce members not to direct an oral hearing where that might otherwise be demanded by the principles of procedural fairness. Thus, there are aspects of the Member Guidance which offend categories (i) and/or (iii) of the taxonomy of unlawful policies set out in R(A) at [46].

The default position of the Member Guidance, highlighted (through the use of bold font) in the executive summary and in the first sentence of paragraph 16.18, is that an oral hearing for a termination of licence “should only be required in exceptional circumstances”. The reasonable reader of the Member Guidance will no doubt understand that that is the approach that they are expected to adopt. Indeed, that appears to be evidenced by the scarcity of cases in which an oral hearing has been directed.

However, there is nothing in the case law, or in the Parole Board Rules, to support the position that it is only in “exceptional circumstances” that an oral hearing should be directed. Nor is that a position that can reasonably be arrived at by considering the general principles of procedural fairness as applied to the overwhelming majority of decisions concerned with the termination of an IPP licence. There will be cases which will call for an oral hearing. There will be cases which do not. Each case will be different and will need to be considered looking at its particular circumstances, including what is at stake for the particular individual.

The fact that the individual is no longer in custody does not mean that the decision is not of real importance, especially where the licence conditions are onerous and may amount to, or come close to, imprisonment at common law. The fact that the individual recently benefited from an oral hearing when he was released into the community will in many cases lessen the call for an oral hearing on the termination decision, but in other cases it may not have that effect. Similarly, the fact that there is a statutory presumption in favour of termination may lessen the call for a hearing in many cases, but will not have that effect in other cases.

I do not consider that the mere setting out of examples in the second sentence of paragraph 16.18 is sufficient to counter the impression given by the first sentence that is only in “exceptional circumstances” that an oral hearing should be directed. The examples given, and which are not said to be exhaustive – “critical disputes of fact, vulnerabilities, or mental health or cognitive functioning which is particularly complex and relevant to risk” – do set out some of the circumstances where procedural fairness may well demand an oral hearing. If they were described as such, without the language in the first sentence or the preliminary words of the second sentence of “Exceptional circumstances might include”, along with a correct statement as to the discussion in Osborn (see below), then that would not be a misstatement of the law or have the potential to mislead.

The vice of the present wording, however, is that these examples will be read by the reasonable decision-maker in the context of the first sentence, and the decision-maker’s assessment as to whether any of those examples are met will be coloured by the first sentence. The reasonable decision-maker will no doubt ask, for instance, whether the “critical disputes of fact” are truly “exceptional”.

Accordingly, I consider that the statements of policy at paragraph 16.18 of the Member Guidance, and the reference to the same point in the executive summary, are unlawful.

As for paragraph 16.19 of the Member Guidance, this correctly identifies in the first and second sentences that paragraph 2(i) of the judgment in Osborn is concerned with applications for release or transfer to open conditions, and that licence terminations are neither of these. The third sentence, however, states that “As the referral is confined to the question of licence termination Osborn principles do not apply”. I consider that this third sentence is a misstatement of the law or is misleading, and therefore offends the principles in R(A) at [46] (categories (i) and/or (iii)). It would give the reasonable reader the impression that the principles in the Osborn case have no bearing on an IPP licence termination decision when (as explained above) they do. Osborncontains general principles that are applicable to all public law decision makers when considering questions of procedural fairness, including members of the Parole Board when considering whether to terminate an IPP licence.

By guiding members not to have regard to Osborn, members will be misled into thinking that the underlying values of procedural fairness articulated in that case by Lord Reed, as well as some of the other points set out by Lord Reed between paragraphs [80]-[96], are of no relevance to them in deciding whether to direct an oral hearing. This is even more likely to be the case given that the Member Guidance refers elsewhere Osborn and explains that Osborn is relevant to other decisions that members may have to make.

Thus, at paragraph 3.2 of the Member Guidance, it is stated that:

“There are currently no specific Parole Board policies for requiring an oral hearing for either IPP Generic Parole Process (GPP) reviews or IPP review of recalls and panels have flexibility to decide cases on their individual merits in line with the relevant pieces of guidance. Member Case Assessment (MCA) panels can conclude any IPP case on the papers where there is sufficient information to make a decision and fairness does not require an oral hearing. An oral hearing is not required unless the circumstances merit exploring oral evidence from witnesses or meet other criteria as set out in the Supreme Court’s judgment in Osborn, Booth & Reilly (OBR).”

In the circumstances, therefore, I consider that ground 1 of Mr Hanson’s challenge is made out, and certain statements within the Member Guidance are unlawful.

In considering the initial decision of the panel member not to direct an oral hearing in Mr Hanson’s case, the starting point of my analysis is that the panel member must have had regard to the contents of the Member Guidance (whether specifically to remind herself of the appropriate approach, or based on her previous training and understanding of its contents) and would not have departed from it without cogent reasons. That is what would be reasonably expected of a conscientious and competent panel member, and would accord with the general approach that it is applied to good public law decision-making: see e.g. R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 at [21]. In looking at the specific reasoning of the panel member, there is nothing to indicate that she did not have regard to the Member Guidance, or that she departed from it.

I have to assume, therefore, that the panel member was looking to see whether there were any “exceptional circumstances” in Mr Hanson’s case that called for an oral hearing; and the panel member must have understood that the general principles expounded in Osborn did not apply and so did not need to be engaged with. If that was the case then, based on my analysis on ground 1, that would have been a misdirection of law by the panel.

What the panel member actually said was that she could not “find any reasons why one might be necessary in light of the dossier containing all the evidence that was necessary . . . to determine Mr Hanson’s case”. In light of the Member Guidance, this must mean that the panel member could not find any “exceptional circumstances” that called for an oral hearing in this case. Furthermore, there is nothing to suggest that the panel member grappled with the general principles of procedural fairness expounded in Osborn. Indeed, the panel member did not explicitly refer to “fairness” as a notion at all. On its face, therefore, the decision of the panel member was unlawful.

At the reconsideration stage, the same starting point as to paying regard to the Member Guidance and not departing from it without cogent reasons must also apply. Looking at the decision reached by the member of the Parole Board, there is a strong indication that he did have in mind the Member Guidance at paragraph 16.19 and followed it. Indeed, the discussion of Osborn at paragraph 47 of the decision is substantially similar to paragraph 16.19 of the Member Guidance. The factual circumstances of Mr Hanson’s case were distinguished from the cases that were being decided in Osborn, and it was explicitly stated that “Osborn does not apply directly to licence termination cases”. It was not stated by the member of the Parole Board that Osborn contained more general principles that did apply to, and should be considered in, Mr Hanson’s case.

Indeed, the reasoning given for upholding the panel member’s decision does not engage with the more general points identified by Lord Reed in Osborn, and did not address the detailed arguments on procedural fairness made by Mr Hanson’s legal representatives in their submissions (see paragraphs 32-3 above). All that was said was that the panel member was fully justified in her conclusion, that there had been an oral hearing in August 2024 where the issues relating to Mr Hanson had been carefully considered, and that the decision directing his release had been reviewed by the panel.

There was, however, no discussion as to what was at stake for Mr Hanson, given the lengthy period that he had already spent in custody, as well as the terms of the IPP licence that he was subject to; what he could say directly about his attitude and approach following his release so as to dispel any concerns about the need for further testing; or whether an oral hearing was necessary to avoid Mr Hanson having a sense of injustice especially where there was a statutory presumption of termination and a recommendation had been made by the Probation Service for termination. The reliance on the Member Guidance at paragraph 16.19, and the failure to address or grapple with the wider points made in Osborn, would mean that the decision on reconsideration was unlawful.

I do not consider that the decision is saved by the way in which the member of the Parole Board appears to have departed from the “exceptional circumstances” test set out at paragraph 16.18 of the Member Guidance. At paragraph 48 of his decision, the member of the Parole Board said that there was “an underlying principle of fairness and that may require an oral hearing in some cases”. Whilst the language of “some cases” is not necessarily inconsistent with the language of “exceptional circumstances” as there will be “some cases” where exceptional circumstances exist, the member of the Parole Board did not cite the specific language of paragraph 16.18 and say that fairness will only require an oral hearing in “exceptional circumstances”. It seems to me, therefore, that the member of the Parole Board was open to adopting a broader approach than that set out in the Member Guidance at paragraph 16.18, and did not consider that he was constrained by the “exceptional circumstances” test.

Nevertheless, whilst the member of the Parole Board at the reconsideration stage may have been open to adopting a broader approach than that of “exceptional circumstances”, as already explained, there was no indication from his reasoning that he addressed or sought to grapple with the wider points made by Lord Reed in Osborn or any of the points about procedural fairness made in the submissions from Mr Hanson’s legal representatives.

I also do not consider that this is a case in which it is possible for the Court to say that it was highly likely that the outcome would not have been substantially different, pursuant to section 31(2A) of the Senior Courts Act 1981, even if the Member Guidance did not contain the errors identified under Ground 1 above. As already explained, irrespective of his approach to the Member Guidance, the member of the Parole Board who made the reconsideration decision did not address or grapple with points that he ought to have done when assessing what procedural fairness demanded in Mr Hanson’s case.

Accordingly, I consider that Ground 2 is made out.

For the foregoing reasons, therefore, the application for judicial review is allowed on both grounds.