pbIn these linked appeals, the Appellants seek to challenge decisions of the Parole Board to refuse their request for an oral hearing when considering whether to direct their release from custody. Their appeal addresses the criteria that must be considered by the Parole Board when deciding whether to grant or refuse an oral hearing at any parole review, and specifically asks whether it is compatible with the duty of procedural fairness to refuse an oral hearing in the belief that a prisoner enjoys such a dim prospect of success at his parole review that an oral hearing is redundant.


Osborn had been recalled to prison following his immediate breaching of his licence conditions, and Booth (who suffers from serious psychopathic tendencies and was described as a “very institutionalised man”) had served nearly thirty years of a life sentence whose minimum term had been set at six and a half years. Both Appellants had been refused release from custody by the Parole Board in decisions made on the papers.

The Appellants had requested an oral hearing so that they could present their versions of incidents discussed in the papers before the Parole Board, and generally so that the Board could hear oral submissions on their behalf. In both cases, the Parole Board refused to grant an oral hearing: in Osborn’s case, because the facts allegedly in dispute were “not essential” to the determination of the matter, and in Booth’s case because he enjoyed no realistic chance of release such that an oral hearing would not “make any material difference to the paper hearing decision.”

The Appellants sought to challenge these decisions by way of judicial review, permission for which was refused on the grounds that the Parole Board was entitled to take the view that it did. The Appellants appealed against that refusal for permission, arguing inter alia that given the nature of the proceedings and the circumstances of the case, the duty of procedural fairness laid down in Article 5(4) ECHR and under the common law required the Parole Board to offer each man an oral hearing.

Permission having been granted by the Court of Appeal, both now appeal to the Supreme Court. The question before the court was: what criteria should the Parole Board apply in deciding whether to direct an oral hearing?

The law

The issue was considered by the House of Lords in R (Smith) v Parole Board (No 2) [2005] 1 WLR 350, in which it was held that the common law duty of procedural fairness did not require the Parole Board to hold an oral hearing in every case. However, their Lordships in Smith emphasised the importance of oral advocacy and held that fairness would require an oral hearing where, for example, important factual matters were in dispute or significant mitigation would be advanced. Lord Slyn stated at paragraph 50 of the judgment: “If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the board should be predisposed in favour of an oral hearing.”

It was also held by the European Court of Human Rights in Hussain v UK (1996) 22 EHRR 1; Waite v UK (2003) 36 EHRR 54  that:

in matters of such crucial importance as the deprivation of liberty and where questions arise which involve, for example, an assessment of the applicant’s character or mental state….it may be essential to the proceedings that the applicant be present at an oral hearing. The court is of the view that, in a situation such as that of the applicant, where a substantial term of imprisonment may be at stake and where characteristics pertaining to his personality and level of maturity are of importance in deciding his dangerousness, article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.”

Court of Appeal judgment

The Court of Appeal (Sedley, Carnwath and Moses LJJ) dismissed the appeals, holding that the judge was correct that the Parole Board was entitled to reject the requests for an oral hearing.

Carnwath LJ approved the criteria laid down in Smith, and warned against reading the European case law as authority for the proposition that an oral hearing would always be needed when liberty was at stake. From paragraph 35:

“…The court [the ECHR] was warning against ex post facto “speculation” by the government as to what the Parole Board might have done, or requiring the claimant to show likely success. That, in my view, is far from saying that the Board is not entitled to take into account its own judgment on the basis of the material available to it, and to consider whether there is a realistic prospect of that being affected by an oral hearing. If not, then to hold an oral hearing, is not only a waste of public time and resources, but it risks raising the hopes of the prisoner for no purpose. On the other hand, as the House of Lords made clear, where the Board is in doubt as to whether an oral hearing may be of assistance, the presumption should be in favour of it.”

The Parole Board was entitled to take the view that a prisoner enjoyed no realistic prospect of release and so to refuse a request for an oral hearing. From paragraph 38:

“Thus, the emphasis is on the utility of the oral procedure in assisting in the resolution of the issues before the decision-maker. There is no suggestion that an oral hearing is necessary even where the decision-maker is able fairly to conclude, having regard to the material before it and the issues in play, that an oral hearing can realistically make no difference to its decision.”

In Osborn’s case, the factual matters allegedly in dispute were held to be not material to the decision, since a psychiatric report would be required before Osborn’s release could be ordered. The Parole Board was therefore entitled to decide on the papers not to direct his release since, lacking this psychiatric information, an oral hearing could make no possible difference to the decision.

In Booth’s case, the court held that those points he wished to put to the Board in oral advocacy might be relevant to the future handling of him in custody, but could not affect the decision on whether to direct his release. The reports, compiled by mental health and other prison staff, were unanimous that he was not suitable for release. The Parole Board was entitled to hold that an oral hearing was unnecessary.

Although offering concurring judgments, Moses and Sedley LJJ sought to emphasise the utility of oral advocacy. Moses LJ stated at paragraph 56, “In considering whether there is no realistic prospect of success, the Board must always bear in mind the power of oral persuasion…. I wish to underline the importance, which Sedley LJ demonstrates, of appreciating the effect of oral persuasion and discussion on cases hitherto believed to be “open and shut””.

Sedley LJ’s parting comments at paragraph 62 best sum up the judgment. He stated:

“I do not doubt that there are cases where an oral hearing before the Parole Board has real value in, for example, enabling a panel which includes a psychologist or psychiatrist to discuss the prisoner’s prospects open-mindedly with the responsible professionals, quite irrespective of whether there are evidential conflicts. There must also be cases where the professionals do not agree among themselves and where a hearing is all but inevitable if the Board is to engage in a productive discussion and reach a measured judgment. But Mr Booth’s is at present none of these cases, and an understandable desire on his lawyers’ part to see what concessions can be extracted from the report-writers at a hearing does not make it one.”

This appeal is especially pertinent at a time when the necessity (and cost) of legal challenges brought by serving prisoners is prominent in the national press. The judgment of the Supreme Court will provide valuable guidance on the line between those cases in which an oral hearing will have “real value” and must be granted, and those in which it would be merely a superfluous and expensive delay to the inevitable.