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

The Claimant is a serving prisoner who was sentenced to an Indeterminate Sentence for Public Protection (IPP) on 19 February 2007, with a minimum term of 5 years. On the 28 October 2013 the Claimant was released on licence into the community. On the 12 June 2017 he was recalled following the commission of further offences. The Claimant was duly convicted of those offences and on 18 August 2017 he was sentenced to an Extended Determinate Sentence, with an 11 year custodial term and a further 3 year licence extension.

The date on which the Claimant would therefore have become eligible for parole under the Extended Determinate Sentence was 17 December 2024. In anticipation of that date, on the 17 October 2024 the Defendant reviewed the Claimant’s continued detention on the papers and declined to direct the Claimant’s release. The Defendant further refused the Claimant’s request for an oral hearing before the Parole Board. The application for an oral hearing was renewed by the Claimant’s representative on 23 October 2024. That request was finally refused on 12 November 2024. It is the refusal to grant an oral hearing by the decision of the 12 November 2024 which is the subject of this challenge.

The claim proceeds on two remaining grounds, namely ground 2 which alleges procedural unfairness and ground 3 which alleges a breach of the Claimant’s rights under article 5 of the European Convention on Human Rights.

The claim was issued on 25 February 2025. The Defendant filed an acknowledgment of service pointing out that it is widely recognised as acting as a court or tribunal when making decisions about release and transfer to open prisons. In accordance with the Parole Board’s own Legal Position Statement, revised in June 2021, the Board does not usually seek to defend the decision of a panel to refuse an oral hearing. As such the Defendant has remained neutral throughout these proceedings. It did not appear at the oral renewal hearing or at the substantive hearing.

Permission to apply for judicial review was refused on the papers by Anneli Hoard KC, sitting as a Deputy Judge of the High Court, on 6 May 2025. The Claimant renewed his application for permission. Permission was subsequently granted on two grounds and refused on one ground on 23 July 2025, by Richard Clayton KC, sitting as a Deputy High Court Judge.

The claim proceeds on those remaining two grounds. Ground 2 alleges unfairness on the basis that the circumstances of the Claimant’s case all point to the holding of an oral hearing. Ground 3 contends that the refusal of an oral hearing violated the Claimant’s article 5 rights which protect the rights of detained persons to challenge the lawfulness of their detention (or continued detention in this case).

The Member Case Assessment review of the Claimant’s detention took place on the 17 October 2024. Within the conclusion section of that review the panel explained its rationale on refusing to convene an oral hearing:

“4.1

In making this decision the panel has considered Mr Thomson’s case against the principles set out in the case of Osborn, Booth & Reilly [2013] UKSC 61 concerning oral hearings. The panel does not find that there are any reasons for an oral hearing despite the legal representations that have been made. Therefore, the review is being concluded on the papers. However, if Mr Thomson believes that his case should proceed to an oral hearing, he is invited to submit further representations to the Parole Board within 28 days of receipt of this decision. 4.2 For the avoidance of doubt, the panel did not find that important facts are in dispute, or that an oral hearing is needed to properly make an assessment of risk, or so that Mr Thomson can put his views across effectively.

4.2

For the avoidance of doubt, the panel did not find that important facts are in dispute, or that an oral hearing is needed to properly make an assessment of risk, or so that Mr Thomson can put his views across effectively.

4.3

It is the view of this panel that Mr Thomson has core risk reduction work to complete and that this should take place in custody.

4.4

Mr Thomson has not completed the HSP programme of risk reduction work which has been recommended for him. The Community Offender Manager, Prison Offender Manager and Psychologist author of the Psychological Risk Assessment are all of the professional opinion that Mr Thomson would benefit from completing core risk reduction work within custody, with the comments in the PRA that “Whilst he has developed insight into some risk factors, this has tended to have been more around his relationships with adults and difficulties within these as opposed to having fully explored his potential sexual interest in children. Thus it is my opinion that the latter remains outstanding.

4.5

The panel therefore believe there is sufficient information within the dossier to fairly undertake an assessment of his risk in the community.”

The paper review further concluded that the Claimant’s risk could not be managed in the community until further work had been undertaken in custody and that the Claimant’s release could not be directed. It went on to examine whether open conditions could be recommended but concluded that core risk reduction work needed to be done in closed conditions. A recommendation for transfer to open conditions could not be made.

The review decision was duly communicated to the Claimant and his representatives who subsequently renewed the request for an oral hearing. The representations allege that the duty member did not correctly apply the principles set out in Osborn (Footnote: ¹) and that the decision making process was focused on the outcome of any hearing rather than ensuring a fair procedure. The Claimant’s representative pointed out that the Claimant disputed facts concerning his recall to prison. The representative also highlighted that there was a clear dispute in terms of the risk reduction work required to be undertaken by the Claimant going forward.

The impugned decision rejected the request for an oral hearing and reiterated the earlier reasons, confirming: “The duty member did not find that important facts are in dispute, that an oral hearing is needed to properly make an assessment of risk, or so that you can put your views across effectively”

At the date of the substantive hearing Mr Buckley confirmed that no decision had been made in terms of an oral hearing for the purposes of the 2025 review. Mr Buckley submitted that this did not render this claim academic because it was brought on procedural grounds. I accept Mr Buckley’s submission that the position here is analogous to that pertaining in R (on the application of Wilson) v Secretary of State for Justice [2022] EWHC 170 (Admin). The events which have post-dated this claim have not included an oral hearing or a decision involving a review or a hearing in which the disputed facts have now been put beyond doubt. The claim is therefore not academic.

The legislative framework and relevant guidance is set out in the Claimant’s skeleton argument. Parole Board Rule 19 is as follows:

“19.

—(1) Where a panel is appointed under rule 5(1) to consider the release of a prisoner, the panel must decide on the papers either that—

(a)

the prisoner is suitable for release;

(b)

the prisoner is unsuitable for release, or

(c)

the case should be directed to an oral hearing.

(2)

Where a panel has received a request for advice from the Secretary of State concerning whether a prisoner should move to open conditions, the panel must recommend whether—

(a)

the prisoner is suitable for a move to open conditions, or

(b)

the prisoner is not suitable for a move to open conditions.

(3)

Where a panel makes a decision that the case should be directed to an oral hearing under this rule, the panel may at the same time make any directions relating to the oral hearing.

(4)

Any decision made under paragraph (1)(a) which is eligible for reconsideration under rule 28 is provisional, and becomes final if no application for reconsideration is received within the period specified by that rule.

(5)

Any decision made under paragraph (1)(a) which is not eligible for reconsideration under rule 28 is final.

(6)

Any decision made under paragraph (1)(b) is provisional.

(7)

Where the Board receives a request for advice with respect to any matter referred to it by the Secretary of State, the Board may advise or make a recommendation to the Secretary of State without an oral hearing.

(8)

The decision or advice of the panel must be recorded in writing with reasons for that decision or advice, and the written record provided to the parties within 14 days of that decision or advice.”

In determining whether an Oral Hearing ought to be granted or otherwise, the relevant principles were identified by Lord Reed in R (Osborn) v Parole Board [2014] AC 1115 at paragraph 2 of the judgment:

“i)

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. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.

ii)

It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following: 

a)

Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.

b)

Where 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 upon 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. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories.

c)

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 in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.

d)

Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a “paper” decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner’s future management in prison or on future reviews.

iii)

In order to act fairly, 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.

iv)

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 prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.

v)

The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.

vi)

When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff.

vii)

The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.

viii)

The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.

ix)

The board’s decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner’s release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.

x)

“Paper” decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.

xi)

In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.”

In the case of indeterminate post-tariff prisoners, the balance tips in favour of an oral hearing to ensure not only fairness but a perception of fairness by the detained prisoner. As Mrs Justice Foster DBE in R (on the application of Somers) v The Parole Board 2023 EWHC 1160 (admin) opined:

“54.

The need for a hearing to satisfy the entitlement of a prisoner to a fair consideration of his position is the stronger in the case of a post-tariff lifer and the omission to consider this aspect properly or at all is a serious omission by the Board.

55.

The Supreme Court in Osborn indicated for a range of prisoners that in cases of doubt a hearing should be afforded. I do not detect in the reasoning of the Board here any doubt in this case. However, in my judgement the reasoning in Osborn which adverts particularly to the position of the post-tariff lifer, 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, and it does, as the court in Osborn recognised, engage Article 5(4).”

The Claimant is a serving prisoner who remains subject to an IPP sentence whilst the extended determinate sentence is being served. The decision of the 17 October 2024 was not to grant an oral hearing and to make no direction for release and no recommendation for open conditions. That decision was made on the basis of the parole dossier and the Claimant’s representations.

The representation highlights what it claims are a number of factual errors in the dossier. The OASys assessment records that the Claimant did not ask for help following his release but the Claimant disputes this. The OASys report refers to previous offending being linked to drug misuse and the Claimant having completed a number of programmes and courses aimed at maintaining abstinence. The conclusion notes that drug misuse issues are linked to the risk of serious harm and other risks. However, the Claimant contends that he has not taken drugs since 2005 which means that he has remained abstinent for 19 years and that matter did not appear in the report. Given the final conclusion, the Claimant’s dispute with this element of the report, and the factual matrix which has fed into the final conclusion on risks associated with drugs, this is a factor which needed further exploration at an oral hearing.

Another factual dispute had been raised in relation to the allegation that the Claimant breached his licence on 20 January 2014 by entering his exclusion zone. The Claimant disputes this and contends that he has proved that it was not him and that he was painting a public house at the time as evidenced by CCTV footage. Again that factual dispute is one which, had it been resolved in the Claimant’s favour, could have had a bearing on one or more of the recommendations. That was an unresolved factual dispute which required closer scrutiny and resolution.

The Claimant has consistently sought an oral hearing and has set out his stated intention to seek release from custody. The recommendation is based, in large part, on the assessment of the risks which would be present on the release of the prisoner and on the mechanism for management of that risk. The question of reduction in risk is based on an evaluative judgment which, in this case, was required to be properly tested by hearing directly from the prisoner and professionals involved and by ventilating any disputes with those judgments.

In addition, the decision of 17 October 2024, upon which the impugned decision was predicated, records that the Claimant had not completed the HSP programme of risk reduction work. However the representation made by the Claimant was put on the basis that he could not currently complete the HSP work and that there were no further courses available to him to reduce his risk. That was an important dispute of fact which required resolution.

In the initial decision, when looking at the question of risk, the report confirms at paragraph 4.2 that the panel did not find that an oral hearing was needed to properly make an assessment of risk or so that the Claimant could put his views across. It continues with the risk assessment as follows:

“4.3

It is the view of this panel that Mr Thomson has core risk reduction work to complete and that this should take place in custody.

4.4

Mr Thomson has not completed the HSP programme of risk reduction work which has been recommended for him. The Community Offender Manager, Prison Offender Manager and Psychologist author of the Psychological Risk Assessment are all of the professional opinion that Mr Thomson would benefit from completing core risk reduction work within custody, with the comments in the PRA that “Whilst he has developed insight into some risk factors, this has tended to have been more around his relationships with adults and difficulties within these as opposed to having fully explored his potential sexual interest in children. Thus it is my opinion that the latter remains outstanding”.

4.5

The panel therefore believe there is sufficient information within the dossier to fairly undertake an assessment of his risk in the community.

4.6

The Community Offender Manager is of the professional opinion that Mr Thomson is currently still assessed as posing a HIGH risk to Children and therefore an immediate risk on release. This panel agrees with that assessment, particularly in light of the fact that he was already subject to comprehensive licence conditions and the conditions of the SOPO and SOR when he went on to commit the 14 further offences on his last licence period.

4.7

The panel therefore carefully considered the potential of Mr Thomson being released into the community and not re-offending, however decided that Mr Thomson's risk cannot be managed in the community until further work has been addressed in custody and therefore the risk of offending and harm that Mr Thomson presents is not manageable within the plan. The level of risk Mr Thomson poses remains such that it is necessary for the protection of the public that he is confined. As such the panel does not direct Mr Thomson’s release.”

The tenor of the assessment is that there remains work to be done and that the decision outcome would not have been different had there been an oral hearing. The impugned decision and the initial decision have not really grappled with the question of what fairness to the Claimant would require and instead has focused on the evidence which the Defendant requires in order to make a decision.

The Claimant is also a post-tariff indeterminate sentence prisoner. Given this factor, I wholly endorse the opinion of Mrs Justice Foster DBE that the balance tips in favour of an oral hearing given that the key issues of insight, risk reduction and management and progression of the prisoner are all matters on which a decision maker would be better placed to come to a view having had the opportunity to question the prisoner.

There is also the Claimant’s legitimate interest in having his case fairly and fully looked at, and in having the opportunity to participate in a key decision about his ongoing incarceration. The question of the likely outcome of an oral hearing should not have been a consideration in the decision makers mind at this point. The key question should have been: on what procedural basis can this important decision as to continued detention be fairly made, ensuring fairness to the prisoner.

For the above reasons I am satisfied that ground 1 is made out and that there has been procedural unfairness.

On behalf of the Claimant, Mr Buckley accepted at the hearing that ground 3 is founded on ground 2. The Parole Board must fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms. Article 5(4) provides that:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

Article 5(4) is clearly engaged given that the Claimant is subject to an extended sentence and is subject to an IPP sentence, in relation to which he is post tariff, and the decision involves his continued incarceration.

I have concluded that the factual disputes and the assessment of risk which underpinned any decision as to continued detention were such in this case as to justify those assessments being ventilated at an oral hearing. It follows that, given that the Defendant failed in its duty of procedural fairness, it also failed to act compatibly with article 5(4).

For the reasons set out I allow the appeal and grant relief as requested. The impugned decision of 12 November 2024 is hereby quashed and I direct that the 2024 review decision is retaken by way of an oral hearing. I further declare that the Claimant’s article 5(4) rights have been violated. Mr Buckley confirmed at the hearing that the Claimant did not pursue a costs order so I make no order as to costs save as to legal aid taxation. I would ask that Counsel prepare a draft order for my approval.