The recent decision in R. (on the application of Bennett) v Parole Board for England and Wales  EWHC 2746 (Admin) has affirmed the previous common law and statutory guidance in regard to when a parole board should allow an oral hearing for a detained prisoner.
The applicant in the present case was serving a 26 month sentence for ABH. In October 2018, Mr Bennett had been released on licence but this was revoked and he was recalled to prison for breaching his licence through drinking excessively and having had a physical altercation.
After his recall, the probation service concluded that Mr Bennett presented an unmanageable risk in the community. At the end of 2018, a post-recall risk management report indicated that Mr Bennett had a variety of issues involving instability, paranoia, suicidal ideation and the need for a formal risk assessment by a psychologist.
As a result of this report, the board decided not to refer the prisoner's potential release to an oral hearing, rejecting submissions by the prisoner that his return to custody had not met the test for recall and that he presented a risk of self-harm but not an unmanageable risk of serious harm to the public.
Judge Walden-Smith granted the Claimant's application for judicial review and ordered that the decision to refuse the claimant's oral hearing was quashed. The parole board's refusal was unfair and breached the prisoner's common law and ECHR art.5(4) rights. The prisoner had well-recorded mental health difficulties, and an oral hearing was necessary to enable the board to assess the extent to which he presented a danger to both himself and others.
The current law in this area is enshrined in both common law and statute. Section 254 and 255 of the Criminal Justice Act 2003 contain provisions for the recall and release of prisoners as well as the duty to refer prisoners not deemed eligible for automatic release to the parole board.
In Osborn v. The Parole Board, Booth v The Parole Board and In re. Reilly  UKSC 61 the Supreme Court set out a series of guidance points as to when there should be an oral hearing:
- Whenever fairness to the prisoner requires such a hearing in the light of the facts of the case
- Circumstances where an oral hearing may be necessary are:
- Where important facts are disputed and there are significant arguments of mitigation.
- Where the board cannot otherwise properly or fairly make an independent assessment of risk.
- Where a face to face encounter with the board is necessary for the case to be put forward effectively
- 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.
- Whether the independent assessment of risk and how that is to be managed would benefit from an oral hearing.
- 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.
- Paper decisions made by single member panels are provisional and a prisoner does not have to justify that this decision was wrong, just that an oral hearing is appropriate.
- The common law duty to act fairly is influenced by the requirements of article 5(4) ECHR.
The granting of Mr Bennett's application and quashing of the parole board's decision identifies clearly that consideration must be given to any potential mitigation that is to be put forward at an oral hearing and whether or not this can be adequately assessed on the papers.
Author: Adam Hartridge, Trainee Solicitor, D +44 161 537 1481
Naomi McMaster, Director, D +44 161 604 1873
Police, Care and Justice team