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print_logoIn an important and wide-ranging judgment, the Supreme Court considered an appeal from three prisoners (previewed for the UKSC blog here), concerning their right to an oral hearing before the Parole Board. As well as providing an answer which has fundamentally changed the way the Parole Board approach such hearings, the judgment offers real food for thought even for lawyers who never practice prison law. Lord Reed’s careful analysis of the common law duty of fairness and of the – often misinterpreted – relationship between the ECtHR and English law should be digested by all lawyers on whose practice human rights jurisprudence has even the lightest touch.Facts and issues

In these joined appeals, three prisoners challenged the refusal of the Parole Board to grant them an oral hearing when deciding whether to recommend their release or transfer to open conditions. Two appellants were serving indeterminate sentences, and one had been recalled after breaching the conditions of his licence. In all cases, the Parole Board had declined to recommend release or transfer after consideration by a single member on the papers, and had refused a request for an oral hearing on the grounds that it could make no possible difference to the ultimate decision – in the case of Osborn because the factual dispute alleged was held to be immaterial, and in the cases of Booth and Reilly (the latter appealing against the judgment of the Court of Appeal of Northern Ireland)  because there was no likelihood or reasonable prospect of immediate release or transfer.

The issues for the court to consider were, inter alia: (1) in what circumstances an oral hearing should be granted, and specifically whether a prisoner’s enjoying no realistic prospect of release or transfer should constitute a good reason to refuse him an oral hearing; (2) whether ECHR, art 5(4) required more than provided for by the common law duty of procedural fairness; and (3) whether the court should determine for itself that a fair procedure had been followed, or merely consider whether the decision-maker had been reasonable in his own assessment of procedural fairness.

Judgment

The judgment of the court was given by Lord Reed, with whom the rest of their Lordships (Lord Neuberger, Baroness Hale, Lord Kerr and Lord Clarke) agreed. Lord Reed summarises his conclusions in detail at paragraph 2 of the judgment. In brief, they are that:

(1) An oral hearing should be held whenever “fairness” demands it. Procedurally fair decision-making engages at least two values beyond mere efficaciousness or accuracy: firstly, it avoids the sense of injustice that arises when a prisoner cannot participate a decision with important implications for him, and secondly, it upholds the rule of law by ensuring that lawmakers hear from those affected by the laws: it “promote[s] congruence between the actions of decision-makers and the law which should govern their actions.” (para 71)

(2) The question of “fairness” is therefore a different question from whether the prisoner has a particular likelihood of release or transfer; it may be fair to order an oral hearing even where it may not assist the Board in reaching the decision immediately before it;

(3) Although it is impossible to law down universal rules, circumstances in which an oral hearing should be held include where there is a factual dispute or a need for oral mitigation; where it is needed to assess the prisoner’s risk, particularly where an assessment of risk is based on the prisoner’s characteristics; where it is needed to test the views of those who oppose the prisoner’s release or transfer; or where it would be unfair to allow the paper decision to become final without an oral hearing, such as where findings in the paper decision might have a significant impact on the prisoner’s future care (paras 80-96);

(4) The common law duty to act fairly is influenced by the requirements of article 5.4 ECHR, and if a procedure satisfies the former it should satisfy the latter. However, it is a mistake to see common law rights and ECHR rights as somehow distinct: human rights have long permeated English law, and a consideration of any human rights question will not begin and end with Strasbourg case law (paras 54-63, 101-113)

(5) It is for the court to determine whether fair procedure has been followed. Its function is not merely to review the reasonableness of the decision-maker’s judgment of what fairness required.

Lord Reed also made a number of other observations: firstly, that the right to an oral hearing is not a right of “appeal”, but rather the paper decision is a provisional decision which becomes final if no oral hearing is held. It should not be assumed that the paper decision is correct (for how can it be if fairness demands an oral hearing?), nor should a prisoner have to put forward “grounds of appeal” before an oral hearing is granted. What the prisoner must show is that it would be appropriate to hold an oral hearing (paras 94-95). Secondly, the Parole Board should guard against the urge to see hearings as an expensive waste of time. Fairness should be paramount and in any case, “procedures which involve an immediate cost but contribute to better decision-making are in reality less costly than they may appear” (para 72).

Commentary

The judgment is clearly of great importance to prisoners and those who practice prison law. It significantly widens the number of situations in which a prisoner will be granted an oral hearing before the Parole Board, reversing the trend of recent years towards paper decisions. A post-Osborn decision to grant or refuse a hearing should be made much more holistically, and not merely focus on whether the prisoner has a realistic chance of release or transfer at the end of the decision. The court recognises that fairness is a concept that extends well beyond practicality: Lord Reed refers to the dicta of Fortescue J in 1773, that in the Old Testament “even God himself did not pass sentence on Adam before he was called on to make his defence.” If even an omniscient being grants a hearing to the original sinner for the sake of fairness, then clearly the (distinctly un-omniscient) Parole Board should do likewise.

The judgment has required the Parole Board to change fundamentally the way it sees oral hearings. This is reflected in new Parole Board guidance, which admits that “the previous policy and practice of the Board could no longer stand” and acknowledges that many more prisoners than before should now be granted an oral hearing. As is recognised in the judgment, in recent years only 1% of decisions have continued to an oral hearing – a trend that will surely not continue after Osborn.

However, the judgment is of much wider application than this. Lord Reed’s consideration at paragraphs 54-63 of the relationship between the common law duty of fairness and the requirements of ECHR, art 5(4) is well worth digesting. In particular, he highlights the fallacy of thinking of “human rights law”, as governed by ECtHR case law, is a distinct area of the law. Rather, it is a fundamental aspect of the common law, developed over centuries, which “permeates our legal system”. The ECHR sets out a number of general principles, which fall to be “fulfilled at national level through a substantial body of much more specific domestic law” and any attempt to consider a human rights issue solely by examining ECtHR case law is misguided:  “the starting point [is] our own legal principles rather than the judgments of the international court.”

Lord Reed continues that, “The Convention taken by itself is too inspecific [sic] to provide the guidance which is necessary in a state governed by the rule of law….The Convention cannot therefore be treated as if it were Moses and the prophets.”  The result is that where the common law duty of fairness is respected, so too will the requirements of art 5(4) be.

In addressing the very nature of human rights law, Lord Reed called with approval upon the words of Lord Cooke in R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532: “The truth is, I think, that some rights are inherent and fundamental to democratic civilised society. Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them.”

These paragraphs are important not just for those lawyers whose work calls most frequently on Convention rights, but also for those – lawyers and non-lawyers– who seek or oppose the repeal of the Human Rights Act 1998 as a solution for perceived excessive or unhelpful European influence on domestic decisions. One wonders if Lord Reed had one eye on that debate when he emphasised that human rights were not invented, or even primarily shaped, in Strasbourg, and nor is their protection guaranteed only in Strasbourg. The concept of human rights and their protection will not be swept away in a post-HRA world.

Finally, some crumbs of support can be found for those currently warning of the consequences of reducing access to the courts. As well as discouraging an approach in which resource allocation rules supreme and in which utility is placed above fairness, Lord Reed also cautions at paragraph 72 against creating a system which is penny-wise, pound-foolish. Whilst an oral hearing might cost in the short term, affording the individual a chance to a fair hearing will contribute to better decision-making in the long-term and this, ultimately, will save everyone money. Indeed, the judgment as a whole stands in contrast to the general policy trend of stripping down court time to a bare minimum for the sake of the purse-strings. It will be interesting to see if the logic of the decision in Osborn provides a glimpse of arguments to come.

Rosalind Earis is a barrister at 6KBW