B e f o r e :

KAREN RIDGE (SITTING AS A DEPUTY HIGH COURT JUDGE) ____________________

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Carl Buckley (instructed by Kesar and Co Solicitors) for the Claimant Hearing date: 6 November 2025 ____________________

HTML VERSION OF APPROVED JUDGMENT ____________________

Deputy High Court Judge Karen Ridge:

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 Procedural History

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).

Factual Background

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:

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 [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 Law and Relevant Guidance

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

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:

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:

The Grounds of Challenge

Ground 1- Unfair Procedure

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:

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.

Ground 3

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:

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).

Conclusions

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.

Note 1 Osborn v The Parole Board [2013] UKSC 61 [Back]