CHAPTER 3
Parole Board decisionmaking
3.1
Introduction
3.3
The statutory provisions
3.5
The decisions made by the Board
3.7
3.12
European Convention on Human Rights
Article 5 and indeterminate sentences
Transfers to open conditions and timings of reviews • Article 5 and
determinate sentences • Consequences of the applicability of article 5
3.32
3.32
3.35
3.39
The tests for release applied by the Parole Board
The statutory provisions
Statutory directions
Indeterminate sentences
Type of risk • Geographical scope of risk • The level of risk
3.52
3.64
3.69
3.70
Determinate sentences
Recall for indeterminate and determinate sentence prisoners
The secretary of state’s power to amend the test for release
Transfers to open conditions for indeterminate sentence
prisoners
3.71
3.71
3.73
Evidence before the Board
Evidence generally
The parole dossier
Disclosure of evidence • Witness evidence • The burden and standard of
proof in Parole Board hearings
continued
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27
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28 Parole Board hearings / chapter 3
3.101
3.101
3.104
Parole Board procedures
Procedures generally
Oral hearings
3.119
3.119
3.112
Parole Board decisions
Reasons
Record of the hearing
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Parole Board decision-making 29
Introduction
3.1
3.2
The Parole Board is considered to be acting as a court when making
decisions about the release of prisoners, whether they are serving
determinate or indeterminate sentences. Unlike earlier versions of
the Parole Board Rules, the Rules that came into force on 3 January 2012 apply when the Board is considering the release and recall
of determinate, as well as indeterminate, sentences. There have
also been important recent developments, both in relation to procedure and the tests that the Board applies, that have more closely
aligned the way in which all kinds of sentences are considered by it.
Accordingly, in contrast with earlier editions of this book, it is convenient to consider some general principles that apply to the Board’s
­decision-making that apply in all cases in one chapter. There remain
significant differences in relation to practice and procedure between
indeterminate, determinate and recall cases which are examined in
the later chapters.
The Board’s powers and duties when making decisions arise
from three primary sources: its statutory framework including the
PBR 2011; the common law requirements of fairness; and requirements that arise from the European Convention on Human Rights
(ECHR).
The statutory provisions
3.3
3.4
As noted in chapter 1, the Board is a statutory body. The procedures
and tests for release it must apply in indeterminate sentence cases
are contained in the Crime (Sentences) Act (C(S)A) 1997, and in
determinate sentence cases, including extended sentences, in the
Criminal Justice Act (CJA) 2003. The PBR 2011 contain further
detail on the procedures that must be followed by the Board.
As the Board is a creature of statute it can only do things that are
expressly or impliedly authorised by the statutes which regulates it.
However, courts should be slow to restrict the implied power of the
PBH3 chs 1-6.indd 29
R (McGetrick) v Parole Board [2013] 1 WLR 2064, para 44.
Parole Board Rules (PBR) 2011 SI No 2947.
PBR 2011 r3(1).
CJA 2003 s239 and Sch 19 – see appendix B.
C(S)A) 1997 ss28–34 – see appendix C.
See appendix D.
R (Roberts) v Parole Board [2005] 2 AC 738, para 65.
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30 Parole Board hearings / chapter 3
Board ‘to enhance the fairness available to a person who otherwise
would be adversely affected by the lack of that power’.
The decisions made by the Board
3.5
3.6
The fact that the Board is a statutory body has consequences in terms
of limiting the range of decisions that it can make. Under the statutory framework cases only come before the Board on a referral from
the secretary of state. Accordingly, the Board cannot make a decision
or recommendation about an issue unless it has been the subject of
such a referral. The issues which the secretary of state refers to the
Board are summarised at para 1.24 above.
The document referring release decisions for indeterminate sentence prisoners to the Board specifically instructs it not to advise
or comment on other matters, such as movement between closed
security categories or the timing of the next review. Before the terms
of referral were set in this manner, it had not been uncommon for
prisoners to ask the Board to comment on matters relating to their
general progress and when their next review should be held.10 While
the Board can still, in the reasons it gives for its decision, make comments that might be of assistance to the prisoner in relation to these
matters, the terms of the referral prevent it commenting directly on
issues such as the appropriate security category, location within the
closed prison estate,11 or that a particular offending behaviour programme should be made available.12
R (Roberts) v Parole Board [2005] 2 AC 738, para 65.
R (Mills) v Secretary of State for the Home Department and another [2005] EWHC
2508 (Admin), para 12; see also PBR 2011 r26(2) which limits the Board’s
decisions to those matters which have been referred to it.
10 For example, in R (Williams) v Secretary of State for the Home Department [2002]
EWCA Civ 498 a category A lifer received a recommendation from the Board
that he should be downgraded, resulting in a finding that the discrepancy
between the Board’s view of his case and the view of the Home Secretary
justified special procedures being put in place for his category A review,
including the possibility of an oral hearing.
11 R (Spence) v Secretary of State for the Home Department [2003] EWCA Civ 732.
12 And the Board’s own guidance reflects this – Parole Board oral hearings guide,
March 2012, Annex F p8. Available at: www.justice.gov.uk/downloads/
offenders/parole-board/oral-hearing-guide.pdf.
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Parole Board decision-making 31
European Convention on Human Rights
3.7
3.8
Although the courts will give primary consideration to the requirements of the common law when determining whether the Board is
acting fairly or lawful,13 the ECHR has had an extremely important
impact both on the evolution of the Parole Board, and how the common law requirements of fairness apply to its functions. However, the
ECHR is not engaged in all the Board’s decision-making. To understand why this is so, and what difference is made where the ECHR is
engaged, it is necessary to look at the history of how the ECHR has
been interpreted as applying to the administration of sentences.
The convention article that has been invoked in order to enhance
the fairness of Parole Board decision-making is article 5, which prohibits arbitrary detention.14 The parts of the article relevant to the
parole process are:
Article 5
1. Everyone has the right to liberty and security of person. No one
shall be deprived of his liberty save in the following cases and in
accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
…
4. 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.
3.9
Prisoners serving sentences imposed by criminal courts are considered to be lawfully detained within the meaning of article 5(1)(a), and
so the question arises as to when does article 5(4) require access to
a further review process to decide whether that detention remains
lawful?
At first sight, the wording of Article 5(4) might make one think that
it guarantees the right of the detainee always to have supervised by a
court the lawfulness of a previous decision which has deprived him
of his liberty … Where [this] decision … is one taken by an administrative body, there is no doubt that Article 5(4) obliges the Contracting
13 See Lord Reed in Osborn and Booth v Parole Board [2013] UKSC 61 at paras
54–63.
14 Article 6 has been held not to apply to Parole Board proceedings on the basis
that the Board is not determining a criminal charge – R (Smith) v Parole Board
[2005] UKHL 1. Although whether such proceedings determine a ‘civil right’ so
as to engage article 6 is undecided, it is difficult to see what this would add to
the fair procedure requirements of article 5(4) or the common law.
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32 Parole Board hearings / chapter 3
States to make available to the person detained a right of recourse to
a court; but there is nothing to indicate that the same applies when
the decision is made by a court at the close of judicial proceedings. In
the latter case the supervision required by Article 5(4) is incorporated
in the decision; this is so, for example, where a sentence of imprisonment is pronounced after ‘conviction by a competent court’ (Article
5(1)(a) of the Convention).15
3.10
3.11
This principle applies where detention remains for the purpose contemplated by the sentencing court. So, where a normal determinate
sentence is imposed by a criminal court as punishment, the review
required by article 5(4) is already incorporated by the imposition of
the sentence. Detention cannot become arbitrary for the purposes
of article 5 because, at any time during such a sentence, it remains
justified as what the court thought appropriate for punishment and
as such satisfies article 5(1)(a).16
It follows that if, in the case of the gravest murders, the sentence
is genuinely one of lifelong detention as punishment, article 5(1)(a)
will be satisfied for the whole of the prisoner’s life.17
Article 5 and indeterminate sentences
3.12
3.13
The various types of indeterminate sentences are described in chapter 7. The common feature of all such sentences is that detention is
potentially indefinite, depending on the level of risk that the prisoner is assessed as posing to the public. Before the European Court
of Human Rights (ECtHR) considered how article 5 applied to such
sentences, the domestic statute gave the executive the power to decide
when life sentence prisoners should be released.
In 1983 the Home Secretary issued a ministerial statement18 that
clarified how he intended to exercise his discretion in releasing life
sentence prisoners. The life sentence was effectively divided into two:
the ‘tariff’ phase, that is the punitive term that the lifer has to serve
for reasons of retribution and deterrence; and the post-tariff phase,
15 De Wilde, Ooms and Versyp v Belgium (1972) 1 EHRR 373 para 76.
16 R (Black) v Secretary of State for Justice [2009] UKHL 1, paras 81–85; R (Giles) v
Parole Board [2003] UKHL 42, paras 51–52; R (Smith and West) v Parole Board
[2005] UKHL 1, para 36.
17 Such sentences can be imposed under the criteria contained in CJA 2003 Sch
21; R v Bieber (aka Coleman) [2008] EWCA Crim 1601. However, article 3
of the ECHR will require a review at a later date as to whether the gravity of
the offence still justifies depriving the opportunity for the prisoner to seek
rehabilitation – Vinter v UK [2013] ECHR 645.
18 30 November 1983.
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Parole Board decision-making 33
3.14
3.15
3.16
when detention is based on whether the lifer is deemed to pose a risk
to the public. In setting the tariff the Home Secretary consulted the
judiciary, and in deciding whether to release consulted the Parole
Board. This statement applied to all lifers.
The ECtHR first analysed the life sentence when a prisoner serving a discretionary life sentence, who had been released and recalled
before the procedures for tariff setting were clarified, challenged the
procedures relating to his recall to custody.19 The court noted that
the discretionary life sentence was only imposed under domestic law
where the offender was assessed as being dangerous and un­stable,
and these characteristics were by their very nature susceptible to
change.20 Therefore, after release, re-detention required a review
under article 5(4) to confirm that there was a ‘causal link’ with the
objectives of the sentencing court.21 The sentencing court could not
predict whether an offender needed to be detained when the punitive phase of the sentence expired, and so a further judicial assessment was required at that stage to ensure detention could be justified
under article 5(1)(a).
There followed a number of domestic challenges that confirmed
that for discretionary life sentence prisoners, as dangerousness was
the criterion for imposition of the sentence, detention after the tariff
(the punitive phase or ‘minimum term’) required an assessment of
dangerousness.22 The requirement under article 5(4) for this assessment to be carried out by a court-like body, even for the initial release
of those sentenced to life imprisonment for very serious crimes, was
subsequently confirmed by the ECtHR.23
These decisions led to a divergence in the way that the different
life sentences were administered. For example, the ECtHR initially
accepted the government’s argument that, although the 1983 statement applied to all lifers, the mandatory life sentence for murder,
imposed automatically irrespective of dangerousness, was in reality
a sentence of lifelong punitive detention24 and so any release mechan­
isms could properly remain in the hands of the executive.25
19
20
21
22
Weeks v UK (1988) 10 EHRR 293.
Weeks v UK (1988) 10 EHRR 293, para 46.
Weeks v UK (1988) 10 EHRR 293, paras 42 and 48.
R v Secretary of State for the Home Department ex p Benson [1989] COD 329; R v
Secretary of State for the Home Department ex p Bradley [1991] 1 WLR 134.
23 Thynne Wilson and Gunnell v UK (1990) 13 EHRR 666.
24 Statement of Angela Rumbold, 16 July 1991.
25 Wynne v UK (1994) 19 EHRR 333.
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34 Parole Board hearings / chapter 3
3.17
Notwithstanding these comments, the ECtHR later decided that
the mandatory indeterminate sentence for those convicted of murder when under 18 (the HMP life sentence) (see para 7.2) required
an article 5(4) hearing to determine detention after the tariff phase
on the basis that the sentence (which involved considerations of
the offender’s welfare) could only justify this following a finding
of danger­ousness.26 Eventually the ECtHR accepted that its earlier
finding that the sentence for adults convicted of murder was one
of lifelong punitive detention could no longer be sustained, as the
domestic arrangements had clearly divided the sentence up into two
phases as with any other life sentence, with dangerousness being the
key to detention in the post-tariff phase.
The Government maintained that the mandatory life sentence was
nonetheless an indeterminate sentence which was not based on any
individual characteristic of the offender, such as youth and dangerousness, and therefore there was no question of any change in the rele­
vant circumstances of the offender that might raise lawfulness issues
concerning the basis for his continued detention. However, the Court
is not convinced by this argument. Once the punishment element of
the sentence (as reflected in the tariff) has been satisfied, the grounds
for the continued detention, as in discretionary life and juvenile murderer cases, must be considerations of risk and dangerousness.27
3.18
Accordingly, mandatory lifers became entitled to article 5(4) compliant reviews on tariff expiry. The process of life sentences moving
from being wholly administered by the executive to being judicially
controlled took about 20 years. Release arrangements for all indeterminate sentences were eventually harmonised by the coming into
force of the relevant parts of the CJA 2003 in January 2004. Prisoners
serving such sentences are all entitled to a hearing under article 5(4)
at the end of the minimum term so that the lawfulness of continuing
detention can be considered.
Transfers to open conditions and timings of reviews
3.19
It has been held by the domestic courts, and confirmed by the ECtHR,
that the requirements of article 5(4) of the ECHR extend only to the
need for a court to have the power to direct release. Any other decision, even if it ultimately may have an important bearing on release,
does not engage article 5(4). Article 5(4) does not require the Board to
26 Singh and Hussain v UK (1996) 22 EHRR 1.
27 Stafford v UK (2002) 35 EHRR 32.
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Parole Board decision-making 35
3.20
have the power to direct that a prisoner be transferred to open conditions when this issue is referred to it.28
Similarly, article 5(4) does not require the Board, notwithstanding its role in supervising the lawfulness of detention in the post
­minimum-term period, to have the power to set the time between
parole reviews – even though the courts have suggested this might
be desirable, it is not a requirement of article 5(4).29
Article 5 and determinate sentences
3.21
3.22
The starting point for analysing how article 5 applies to determinate
sentences is that article 5(1) is satisfied for the whole of the fixed-term
sentence imposed as punishment (see para 3.9 above). The exception
to this principle is where a prisoner is wrongfully detained beyond
a statutory early release date that carries a right to be released. Such
detention has been held to constitute the tort of false imprisonment,
and accordingly is a breach of article 5(1).30 The same prin­ciple applies
where entitlement to release under a conditional release scheme is
established, as there is no longer lawful authority to detain, although
this does not mean that the procedure leading to a decision that such
a prisoner should be released needs to comply with article 5(4).31
As the structure of article 5 logically links the need for a review
under paragraph (4) with the potential lawfulness of detention under
paragraph (1)(a), it might be thought that determinate sentence prisoners are not entitled to an article 5(4) compliant review at any stage
of their sentence, even where they have been released and recalled.
The domestic courts have, however, drawn a distinction between the
position of a prisoner who is seeking their initial release from prison
at the parole eligibility date halfway through the sentence, and a prisoner whose recall to prison is being considered by the Board. In the
latter case, even though article 5(1)(a) is satisfied by the original sentence in its entirety, the House of Lords in the Smith and West case
held that article 5(4) is engaged when the Parole Board considers
28 Blackstock v UK (Admissibility) [2005] 2 Prison Law Reports 85 and (2006) 42
EHRR 2 affirming a long line of domestic decisions.
29 R (Day) v Home Secretary [2004] EWHC 1742 (Admin).
30 R v Governor of Brockhill Prison ex p Evans (No 2) [2001] 2 AC 19.
31 Gebura v Poland (App No 63131/00) (unreported); R (Black) v Secretary of State
for Justice [2009] UKHL 1, para 70.
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36 Parole Board hearings / chapter 3
recall.32 The rationale behind this finding was not entirely clear. In a
subsequent case Lord Brown stated:33
Inescapably it follows from [Smith and West] that contrary to the view
expressed in the Strasbourg court’s admissibility decision in Brown,
a prisoner’s recall for breach of his licence conditions does raise, ‘new
issues affecting the lawfulness of the detention’ such as to engage
article 5(4). And that seems to me clearly correct: it would not be lawful to recall a prisoner unless he had breached his licence conditions
and there could well be an issue as to this.
3.23
3.24
3.25
3.26
The fact that recall raises fresh issues as to the legality of detention
would appear to be self-evident. But this is difficult to reconcile with
the decision that detention can never become unlawful under article
5(1)(a) during the currency of a determinate sentence where the prisoner is recalled. The language of ‘new issues affecting lawfulness’ of
detention suggests that the need for an article 5(4) review is precisely
to prevent detention becoming arbitrary.
This apparent conflict raised by Smith and West, that article 5(4)
could be engaged even where there was no risk of detention in breach
of article 5(1), subsequently led the Divisional Court and Court of
Appeal in a series of cases to hold that article 5(4) was engaged when
the Parole Board was considering the initial release of determinate
sentence prisoners.34 These cases accepted an analysis that the release
of determinate sentence prisoners involved an assessment of risk by
the Parole Board, which was analogous to its function when deciding
whether to release indeterminate sentence prisoners at the end of the
minimum term.
However, this line of cases was overruled when Black reached the
House of Lords. The Lords reaffirmed the analysis that article 5(4) had
no part to play in the initial release of determinate sentence prisoners
(see para 3.10 above). Therefore, in principle early release mechan­
isms can be left wholly to the executive without offending article 5(4),
and that position is not altered simply because the decision is in fact
entrusted to a court-like body such as the Parole Board.35
Conversely, the courts have held that recall from Home Detention
Curfew (HDC), where recall relates solely to the curfew conditions,
where the case is not referred to the Parole Board and the prisoner
32 R (Smith and West) v Parole Board [2005] UKHL 1.
33 R (Black) v Secretary of State for Justice [2009] UKHL 1, para 74.
34 R (Johnson) v Secretary of State for the Home Department [2007] EWCA Civ 427;
R (Black) v Secretary of State for Justice [2008] EWCA Civ 359; R (O’Connell) v
Parole Board [2007] EWHC 2591 (Admin).
35 R (Black) v Secretary of State for Justice [2009] UKHL 1, paras 82–83.
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Parole Board decision-making 37
3.27
3.28
is re-released automatically at the half-way point of the sentence,
does not engage article 5(4).36 The courts have drawn a distinction
between recall prior to the normal automatic release date, and during the HDC period as the latter is a ‘modified way of performing the
original sentence imposed by the judge’.37
Although the position for determinate sentences and article 5 is
generally as set out at para 3.24 above, extended sentences (that is,
sentences comprising a punitive ‘custodial term’ together with an
‘extension period’ of supervision in the community imposed to protect the public – see further in chapter 6) are different. Although
not strictly indeterminate, similar considerations as for the post­minimum phase of life sentences apply to detention during the
extension period. As the extension period is not imposed punitively,
but to protect the public, whether detention is necessary for this purpose requires examination under article 5(4).38
In summary, article 5(4) is engaged:
• whenever the Board considers whether to direct the release of an
indeterminate sentence prisoner at the end of the minimum term
or tariff period;
• whenever the Board considers whether to re-release someone
serving a determinate or extended sentence (but not when it considers the initial release of such prisoners).
Consequences of the applicability of article 5
3.29
Article 5(4) requires review of the legality of detention by a ‘court’.
However, the court referred to in article 5(4):
• does not necessarily have to be a court of law of the classic kind
integrated within the standard judicial machinery of the country;
but
• must be independent of the executive and any parties to the case;39
and
36 R (Whiston) v Secretary of State for Justice [2012] EWCA Civ 1374.
37 R (Whiston) v Secretary of State for Justice [2012] EWCA Civ 1374, para 31 – this
finding is difficult to understand as the court recognised that, as in Smith and
West, ‘new facts have to be established before the prisoner can be recalled’
(para 33). Whiston has been granted permission to appeal to the Supreme
Court.
38 R (Sim) v Parole Board [2003] EWCA Civ 1845.
39 See discussion of the Board’s structural independence at paras 1.17–1.23.
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38 Parole Board hearings / chapter 3
•
•
3.30
3.31
needs to provide a judicial procedure appropriate to the kind of
deprivation of liberty in question; and
must have the power to direct, not only advise on, release.40
The need for the review to be ‘wide enough to bear on those conditions that, under the ECHR, are essential for the lawful detention of
a person in the situation of the particular detainee’41 necessitates the
reviewing body to be fact-sensitive and rule on the essential question
of risk to the public. Accordingly, when first analysing its requirements the ECtHR considered that the availability of judicial review of
a non-ECHR compliant parole procedure did not remedy the breach
of article 5(4), as the grounds for judicial review were traditionally
too narrow.42 The Parole Board, as an expert quasi-judicial body set
up to examine risk, was clearly suited to the task of carrying out such
reviews, subject to amendments to its powers and procedures.
As article 5(5) requires states to provide compensation for ­breaches
of article 5, there has been considerable domestic case law on the
amount of compensation payable for delays in the Parole Board pro­
cess (see chapter 13).
The tests for release applied by the Parole Board
The statutory provisions
3.32
Since the coming into force of the Legal Aid, Sentencing and Punishment of Offenders Act (LASPO) 2012 on 3 December 2012, when
considering the initial release both of indeterminate sentence prisoners and those determinate sentence prisoners who are referred to it,
the Board is by statute required to consider a similar test – namely
whether it is ‘satisfied that it is no longer necessary for the protection
of the public’ that the prisoner should remain detained.43
40 Weeks v UK (1988) 10 EHRR 293, paras 59 and 61. As noted above, the Board
now has very clear directive powers for all its release decisions, even where it
has been held that article 5(4) does not apply.
41 R (Smith and West) v Parole Board [2005] UKHL 1, para 37.
42 Weeks v UK (1988) 10 EHRR 293, para 69 – despite the fact that now the HRA
1998 may require the judicial review court to decide itself whether a decision
is proportionate (R (Daly) v Secretary of State for the Home Department [2001] 2
AC 532) as the Parole Board is an expert body entrusted by parliament to assess
risk, the court will not review the merits of its decisions but rather whether it
was entitled to come to its view: R (Wyles) v Parole Board and Secretary of State
for the Home Department [2006] EWHC 493 (Admin), para 32.
43 C(S)A 1997 s28(6)(b) in relation to indeterminate sentence prisoners; CJA 2003
Sch 20B para 6(2) for CJA 1991 determinate and extended sentences referred
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Parole Board decision-making 39
3.33
3.34
LASPO 2012 has also amended the statutory tests for release so
that the all the Board’s decisions ‘direct’ rather than ‘recommend’
release.44
The other pre-release decision relating to those serving indetermin­
ate sentences that is referred to the Board is whether to recommend a
transfer to open conditions. Such referrals45 are different as they are
for advice, and so this is the one area where the Board’s decision can
be rejected by the secretary of state (see para 8.49).
Statutory directions
3.35
3.36
3.37
The Justice Secretary has a statutory power to give the Parole Board
‘directions as to the matters to be taken into account by it’ when considering referrals to it.46 In the case of Girling it was held that in
giving directions to the Board when acting as a court, the secretary
of state was entitled to provide guidance on matters to be taken into
account; however, what was not permissible, as this would unlawfully impugn the Board’s independence, was for the directions to
interpret the statutory test that the Board has to apply.47
Prior to the coming into force of the relevant provisions of LASPO
2012 on 3 December 2012, there were in place a range of statutory
directions to the Board that covered the release and recall of indeterminate sentence prisoners, the release and recall or determinate
sentence prisoners, and decisions on recommendations for open
conditions.
In a written ministerial statement on 11 July 2013, the Justice
Secretary gave notice that he was withdrawing all the formal directions to the Board, except those relating the transfer of indeterminate ­sentence prisoners to open conditions (as this was a matter in
relation to which the Board is still providing advice). In doing so he
stated:
In its original incarnation, the Board was an advisory body which made
recommendations to the Secretary of State who was responsible for
44
45
46
47
PBH3 chs 1-6.indd 39
to the Board; CJA 2003 Sch 20B para 15(4) for CJA 2003 extended sentence
for public protection (EPP) cases; and CJA 2003 s246A(6)(b) for the extended
determinate sentence (EDS) available from 3 December 2012. For the position
on recall see chapter 12.
This was already the position for indeterminate sentence prisoners: C(S)A 1997
s28(5).
Made under CJA 2003 s239(2).
CJA 2003 s239(6).
R (Girling) v Parole Board [2006] EWCA Civ 1779.
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40 Parole Board hearings / chapter 3
the final decisions on release. It was in this context that the power for
the Secretary of State to issue Directions to the Board was established.
Since then, however, the Board has evolved into an independent decision-making body. I believe that it is more appropriate, therefore, for
the Board to set its own guidance in relation to the application of the
statutory release test that Parliament has put in place.
3.38
This was a very important development as, although Girling had
made clear in relation to indeterminate sentences that the statutory
directions could not dictate the test to apply, in relation to determin­
ate sentences the directions were accepted by the courts as effectively
determining the relevant test. These directions suggested that the
Board could refuse to release the prisoner because of a risk of any
kind of offending, rather than of sexual or violent offending, or a risk
of any particular level of harm. As noted in the ministerial statement,
the Board has issued its own guidance to members on how to apply
the statutory tests relating to determinate sentence prisoners which
radically changes this position (see para 3.52 below).
Indeterminate sentences
3.39
Those serving indeterminate sentences must serve the minimum
term imposed for punishment before being considered for release
by the Board. The statutory test refers to the need ‘protection of the
public’. There are two aspects to this test: the type of risk and the
level of that risk that will justify the Board deciding that the prisoner
should not be released.
Type of risk
3.40
The position for all types of indeterminate sentence prisoners is that
it is only a risk of serious harm to the public (also termed ‘dangerousness’) that can justify detention after expiry of the minimum
term. This was first established in relation to the discretionary life
sentence. As the sentencing court had imposed the sentence because
the prisoner was assessed as dangerous, it was only such a risk that
could justify post-tariff detention:
If risk to the public is the test, risk must mean risk of dangerousness.
Nothing else will suffice. It must mean there is a risk of [the prisoner]
repeating the sort of offence for which the life sentence was originally
imposed; in other words risk to life and limb.48
48 From R v Secretary of State for the Home Department ex p Benson (No 2) (1988)
Independent 16 November, but quoted in full in Bradley [1991] 1 WLR 134 at
142C.
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Parole Board decision-making 41
3.41
3.42
3.43
3.44
3.45
The same approach will apply to indeterminate sentences that are
imposed under the CJA 2003 where one of the statutory pre-­conditions
is that the person poses a ‘significant risk of serious harm’.49
For cases where the statute states that the sentencing court must
impose a life sentence if certain conditions are met (see the ‘life
sentence for a second listed offence’ under CJA 2003 s224(A)) the
position is also similar. The purpose of such sentences is clearly to
protect the public from the type of offence giving rise to the sentence.
Accordingly, even if the statutory grounds for not imposing the sentence do not refer to the level of risk posed by the offender,50 the
courts will interpret such grounds as including circumstances where
the offender does not pose a risk of serious harm.51
This principle also applies to indeterminate sentences imposed
for murder where the sentence is mandatory and so the sentencing court does not make any assessment of dangerousness. Again
the objectives of the sentence for murder are not met by detention
after expiry of the minimum term unless the prisoner is assessed
as dangerous.52 However, the fact that the sentencing court has not
assessed the offender as dangerous may have implications for the
way that the Parole Board approaches the case. It cannot make any
assumptions about the dangerousness of a person serving sentence
for murder given there has been no assessment of dangerousness by
the sentencing court.53 Accordingly, it may be an error of approach
to require the offender to demonstrate that his or her risk has significantly reduced since sentence before directing release.
In cases applying the ECHR, this requirement that the grounds
for any lawful detention following the minimum term need to reflect
the objectives of the sentencing court is referred to as a ‘causal link’
or ‘causal connection’ with those objectives.54
However, the ‘causal link’ does not require the risk to be of the
same type of offending that led to the imposition of the sentence. So
49 CJA 2003 s225(1)(b) – ‘serious harm’ is defined as ‘death or serious injury,
whether physical or psychological’ – CJA 2003 s224(3). See R (Sturnham) v
Parole Board and another (No 2) [2013] UKSC 47, para 23.
50 CJA 2003 s224A(2).
51 See by analogy R v Offen (No 2) [2001] 1 WLR 253 – in relation to the ‘two
strikes’ life sentence that was abolished by the CJA 2003.
52 Stafford v UK (2002) 35 EHRR 32, para 80 – the UK unsuccessfully argued
that as dangerousness was not a criterion for imposition of the mandatory life
sentence, post-minimum term detention could be justified on the basis of a
risk of any type of offending.
53 R v Parole Board ex p Curley (1999) 22 October, HC, unreported.
54 Stafford v UK (2002) 35 EHRR 32, para 81.
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42 Parole Board hearings / chapter 3
a prisoner sentenced to a life sentence for non-sexual offences can
be re-detained because of a risk of sexual offence. The test is a single
one of dangerousness:
The causal connection is broken in cases where there is no risk to
life and limb after the expiry of the tariff, but not where there is such
a risk, albeit from offences of a different kind from those originally
committed … I conclude that where both the original sentence and
the continued detention of a life prisoner are based on the risk of serious harm to the public, there is no inconsistency between the original
objectives of the sentencing court and the decision not to release or the
decision to re-detain notwithstanding that the sentencing court had in
mind a different kind of offence from that subsequently feared.55
Geographical scope of risk
3.46
When the Parole Board considers risk to the public, this is not limited to release within England and Wales. This is of particular importance to lifers facing deportation at the end of their sentence, as it will
still be necessary for the Board to reach a decision that they do not
pose a risk of harm on release, even when the actual release will be
to a different country.56 This can pose particular problems for lifers
being returned to countries where there may have few or no family ties especially as there is no obligation on the receiving country
to provide any support or assistance.57 Where the Home Office has
indicated that it intends to deport the prisoner, the Board is entitled
to proceed to consider the risk the prisoner will pose in the country
to which he or she will be deported, even if it considers that the risk
would be low enough for release in the UK. In one case involving a
prisoner convicted of offences of terrorism, the court considered that
in such circumstances fairness might require a proper exploration of
how risk would be managed by the receiving state.58
55 R (Green) v Parole Board [2005] EWHC 548 (Admin), para 32. Similarly for
those serving imprisonment for public protection (IPP) sentences even though
the sentence is imposed for ‘specified’ offences, the justification for postminimum term detention is not limited to the risk of commission of such
offences: R (Sturnham) v Parole Board and another (No 2) [2013] UKSC 47,
para 45.
56 R v Parole Board ex p White (1994) Times 30 December.
57 Although such indeterminate sentence prisoners may now be released for
deportation at minimum term under the TERS scheme (C(S)A 1997 s32A), and
the secretary of state also has power to release determinate sentence prisoners
liable to removal between the date of parole eligibility and automatic release
(CJA 2003 Sch 20B paras 36–37), where such prisoners have not already been
released for deportation under the Early Release Scheme (CJA 2003 s260).
58 Hindawi v Parole Board [2012] EWHC 3894 (Admin).
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Parole Board decision-making 43
The level of risk
3.47
For a long time the only authority on the level, as opposed to the
type, of risk that would justify detention following the expiry of the
minimum term was Bradley.59 The case involved a prisoner serving
a discretionary life sentence. The court held that even though the
threshold for imposition of the sentence was a ‘high degree of perceived public danger’, a much lower threshold was sufficient to justify
detention after the minimum term. The court rejected the suggestion that the thresholds should be the same, as this would inevitably
mean that the Board would be ‘required to release back into society
a relatively high risk group’, which could not have been parliament’s
intention. A lower test was also accepted as appropriate as the Board
is an expert body, set up by parliament to evaluate risk at the point of
possible release. The test the court set out was:
[F]irst, that the risk must indeed be ‘substantial’ … but this can mean
no more than that it is not merely perceptible or minimal. Second,
that it must be sufficient to be unacceptable in the subjective judgment of the Parole Board to whom Parliament has of course entrusted the decision … Third, that, in exercising their judgment as to the
level of risk acceptable, the Parole Board must clearly have in mind all
material considerations.60
3.48
3.49
This issue was revisited in the case of Sturnham.61 The Supreme
Court in that case was considering the case of a prisoner serving
a sentence of imprisonment for public protection (IPP) imposed
under the CJA 2003. The prisoner argued that as the statutory precondition for imposition of the IPP sentence was the existence of a
‘significant risk’ of serious harm that only such a risk could justify
post-­minimum term detention.
The Supreme Court rejected this contention. It considered that
the approach of the court in Bradley as to the respective roles of the
sentencing court and the Parole Board was equally applicable to
those serving IPP sentences. Moreover, parliament had successively
legislated so that those serving indeterminate sentences were subject
to the same statutory test for release since Bradley, and so must have
intended that the same test should apply to all such sentences.62
59 R v Parole Board ex p Bradley [1991] 1 WLR 134. The case in fact pre-dated the
current wording of the statutory test for release, but its reasoning was applied
to similar wording in R v Parole Board ex p Lodomez (1994) 26 BMLR 162.
60 R v Parole Board ex p Bradley [1991] 1 WLR 134, p146.
61 R (Sturnham) v Parole Board and another (No 2) [2013] UKSC 47.
62 R (Sturnham) v Parole Board and another (No 2) [2013] UKSC 47, para 42.
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44 Parole Board hearings / chapter 3
3.50
3.51
However, the Supreme Court in Sturnham, while holding that
Bradley was right to suggest that the Board was not bound by the
threshold that the sentencing court applies when imposing an indeterminate sentence, did criticise its interpretation of the test the Board
is to apply. Lord Mance stated that ‘the equation of “substantial” risk
with any risk that is “not merely perceptible or minimal” tends to
change the focus or starting point in a way which may influence the
conclusion. It is preferable to concentrate on the statutory language
and not to paraphrase’.63
Sturnham has therefore to an extent shifted the approach the Board
should apply. It is no longer appropriate to apply a rigid threshold
whereby a ‘more than minimal’ risk of serious harm will justify detention post minimum-term. This reflects the fact that a lower risk of particularly grave offending might result in a decision to refuse release,
as against a higher risk of less serious offending. Similarly, a prisoner
with a suitable release plan designed to manage risk may be released,
when a prisoner posing a risk of similar offending without such a plan
might not. The question is likely to be whether the Board considers in
all the circumstances, including the plans to manage risk in the community, the prisoner poses an unacceptable risk for release, given its
duty to protect the public from the risk of serious harm.
Determinate sentences
3.52
3.53
The test for release in determinate sentence cases is less certain as
the position has not been tested in the courts since the coming into
force of LASPO 2012. As noted above from 3 December 2012 the
Board applies a similar statutory test when considering the initial
release of determinate and extended sentence prisoners as applies to
indeterminate sentences.
Prior to this development the Board proceeded on the basis that
the release of determinate sentence prisoners was subject to directions issued by the Justice Secretary (see para 3.35 above) in the
absence of a statutory test. These directions suggested that a risk of
any kind of offending was sufficient to justify a refusal to release the
prisoner, although this risk had to be balanced against the benefits
to the offender of early release under licence.64 The fact that article
5(4) has been held not to apply to initial release decisions relating to
63 R (Sturnham) v Parole Board and another (No 2) [2013] UKSC 47, para 29.
64 The courts also refused to accept that a serious harm test applied to
determinate sentence cases – for example, R (Oakes) v Secretary of State for
Justice and another [2009] EWHC 3470 (Admin).
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Parole Board decision-making 45
3.54
3.55
3.56
3.57
determin­ate and extended sentence prisoners65 also supported the
position that there was no impropriety in the secretary of state setting
the test for release in these cases.
The extension of ‘protection of the public’ test to all determinate
sentence releases (see para 3.32 above), and the amendment to the
statutory provisions to describe the Board’s decisions as directions
rather than recommendations (see para 3.34 above), provided an
impetus to the Board to decide that it should not be bound by the
directions given by the secretary of state. Accordingly, on the coming into force of LASPO 2012 in December 2012 the Board issued its
own guidance on how it proposed to approach the release of determinate and extended sentence prisoners.
Whether the Board was right to accept that the correct test for
determinate sentence prisoners was referable to a risk of any offending had already been considered by the courts prior to LASPO 2012
coming into force, in the case of Foley.66 In that case the prisoner
relied upon comments in the case of Clift v UK that ‘insofar as the
assessment of the risk posed by a prisoner eligible for early release
is concerned, there is no distinction to be drawn between long term
prisoners serving less than fifteen years, long term prisoners serving
fifteen years or more and life prisoners’.67
The issue that the ECtHR was determining in Clift was whether it
amounted to unlawful discrimination in breach of articles 14 and 5
of the ECHR for the secretary of state to reserve the power to refuse
to release prisoners serving 15 years or more who had been recommended for release by the Board.68 The issue was not therefore about
the test for release but the appropriate decision-maker.
However, the court in Foley accepted that there was a persuasive
analogy between release at the end of the minimum term in indeterminate sentence cases, and the Board’s task when considering
release at the halfway point of the determinate sentence that was relevant to the test to apply. Despite the differences between the two
types of sentence, both ‘now in reality are divided into a punitive element which may be followed by a period of risk based detention’.69
65 R (Black) v Secretary of State for Justice [2009] UKHL 1; and R (O’Connell) v
Parole Board [2009] EWCA Civ 867.
66 R (Foley) v Parole Board and another [2012] EWHC 2184 (Admin).
67 Clift v UK [2010] ECHR 1106, para 67.
68 This power was eventually removed from 2 August 2010 by the coming into
force of Coroners and Justice Act 2009 s145 – Coroners and Justice Act 2009
(Commencement No 5) Order 2010 SI No 1858 art 2(a).
69 R (Foley) v Parole Board and another [2012] EWHC 2184 (Admin), para 71.
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46 Parole Board hearings / chapter 3
3.58
3.59
3.60
This being the case there was no justification for imposing a higher
threshold for release in determinate sentence cases, when those serving such sentences are likely to be less dangerous than those serving
indeterminate sentences.70
The court therefore considered that that it was unjustifiably discriminatory for the Board to refuse to apply a serious harm test,
rather than one relating to risk of any offending, when considering
whether to release determinate sentence prisoners. However, the
claim for judicial review failed as the court considered itself bound
by the finding of the House of Lords in Clift that length of sentence
was not a characteristic that came within the ambit of article 5 and so
there could be no discrimination under article 14.71
The guidance initially issued by the Board on the coming into
force of LASPO 2012 went some way to accepting the prisoner’s argument in Foley.72 It noted that the language of ‘protection of the public’
in the statutory test was suggestive of requiring a causal link between
the objectives of the sentencing court and detention after the point at
which the Board was required to consider the case (although it was
accepted that article 5 was not directly engaged).
Following the coming into force of the Criminal Justice and
Immigration Act (CJIA) 2008 the only determinate sentence initial
release cases referred to the Board are those where the conviction
is for sexual or violent offences. Accordingly, the Board in its guidance stated that: ‘In order to direct release, the Board should be satisfied that it is no longer necessary for the prisoner to be detained in
order to protect the public from the commission of violent or sexual
­offences.’ The guidance stopped short of saying that the test was referable to a risk of serious harm, so that a risk of violent or sexual
offences that did not give risk to such a risk would still be sufficient
to justify continued detention.73
70 R (Foley) v Parole Board and another [2012] EWHC 2184 (Admin), para 69.
71 Notwithstanding the fact that the ECtHR, when it considered Clift, decided that
length of sentence could constitute such a characteristic.
72 The Parole Board of England and Wales: Guidance to Members on LAPSO (2012),
December 2012, available at: www.justice.gov.uk/downloads/offenders/paroleboard/guidance-on-laspo.pdf.
73 This was an approach that had been applied to extended sentences for offences
committed before the coming into force of the CJA 2003, which were imposed
for sexual or violent offences, but without the sentencing court making a
finding of dangerousness: R (Sim) v Parole Board [2003] EWHC 152 (Admin),
para 41.
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Parole Board decision-making 47
3.61
Following the coming into force of LASPO 2012 the Board, in
response to a further legal challenge,74 conceded that this approach
was wrong. As the wording of the statutory test for release of deter­
minate sentence prisoners mirrored that for indeterminate sentences
it accepted that the appropriate test for both relates to a risk of offending leading to serious harm. The Board has now issued amended
guidance (at appendix 8) which states that:
In order to direct release, the Board should be satisfied that it is no
longer necessary for the prisoner to be detained in order to protect the
public from serious harm (to life and limb). It is not a requirement
to balance the risk against the benefits to the public or the prisoner
of release.
3.62
3.63
This development is very significant. Most notably, despite the fact
that it has been held conclusively that article 5 is not re-engaged
when the Board is considering the initial release of determinate
and extended sentence prisoners, the Board now accepts that there
should be no difference in approach insofar as the test for release is
concerned. This means that even a high risk of non-violent offending, such as from offences of fraud or theft, will be insufficient to
prevent the Board from directing release.
As it appears that the Board accepts there is no justification to distinguish between indeterminate and determinate sentence cases in
relation to the type of risk, one would expect that the Board will also
apply the same approach in relation to the level of risk that will justify
detention (see discussion at para 3.47 above).
Recall for indeterminate and determinate sentence
prisoners
3.64
When considering the recall of either indeterminate or determinate
sentences, the statutory framework does not specify a particular test
but merely requires the secretary of state to give effect to the Board’s
direction.75 In relation to life sentences it has been held that the
Board should apply the same test as when considering whether to
direct initial release.76
In exercising its practical judgment the Board is bound to approach its
task under the two sections in the same way, balancing the ­hardship
and injustice of continuing to imprison a man who is unlikely to
74 King, which did not proceed to a hearing.
75 See C(S)A 1997 s32(5) and CJA 2003 s255C respectively.
76 R v Parole Board ex p Watson [1996] 1 WLR 906.
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48 Parole Board hearings / chapter 3
cause serious injury to the public against the need to protect the public against a man who is not unlikely to cause to such injury. In other
than a clear case this is bound to be a difficult and very anxious judgment. But in the final balance the Board is bound to give preponderant weight to the need to protect innocent members of the public
against any significant risk of serious injury.77
3.65
3.66
3.67
3.68
In its guidance to members following the coming into force of LASPO
2012, the Board states that it will apply the same principle to determin­
ate sentence recalls, so that it will apply the same test for recall as it
does when considering initial release. This is so even though the vast
majority of determinate sentence prisoners are released automatic­
ally rather than following a Parole Board decision.
This does mean that different bodies concerned with the recall
process will be applying different tests. Currently the guidance to
the Probation Service states that requests for recall of determinate
sentence prisoners (except those serving extended sentences78) can
be made because of a risk of any offending.79 Once recalled, however,
the secretary of state will release such prisoners after 28 days (fixed
term recall (FTR)80) unless the prisoner is considered to pose a risk
of serious harm.
Accordingly, during the FTR period the prisoner might be detained
because of a risk, for example, of non-violent or non-sexual offending. FTR recalls are referred to Board if the prisoner makes representations. If there is time during the 28-day period for the Board to
consider the case then, if the recall was only in relation to a risk not
related to serious harm, it will inevitably release the prisoner.
If the reasoning of Foley is correct (as the Board seems to have
accepted) there is now no lawful justification to treat determinate
sentence prisoners after their release date differently to indetermin­
ate sentence prisoners in the post minimum-term phase of the sentence. If determinate sentence prisoners can be detained during the
77 R v Parole Board ex p Watson [1996] 1 WLR 906 at 916H.
78 Whose recall, it is already established, engages ECHR article 5(4) and so
must have a ‘causal link’ with the sentencing objectives of the court – that
is, protection of the public: R (Sim) v Parole Board [2003] EWCA Civ 1845.
The guidance to the Probation Service recognises that such prisoners should
therefore be recommended for recall only where there is a risk of violent or
sexual offending – see para 12.11.
79 See para 12.10.
80 See further at chapter 12.
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Parole Board decision-making 49
FTR period because of a risk of any offending, then there is a potential anomaly in the system.81
The secretary of state’s power to amend the test for
release
3.69
LASPO 2012 includes a provision82 that gives power to the Justice
Secretary to amend the test for release that applies to those serving
IPP sentences, extended sentences, or those determinate sentences
whose initial release is dependent on a direction of the Board. This
power must be exercised by statutory instrument. At the time that
the Board issued its guidance to members on the coming into force
of LASPO 2012, the Justice Secretary stated that there were no plans
to exercise this power.83 The purpose of the introduction of this statutory power is unclear. On one view it would enable the Justice Secretary to introduce a test more favourable to the prisoner, for example
to reduce prison overcrowding.84
Transfers to open conditions for indeterminate
sentence prisoners
3.70
This is the one area where referrals to the Board are subject to directions from the secretary of state (see appendix F) as the Board is being
asked for advice rather than exercising a power to direct release. It
has been held that the Board is under a duty to apply the directions,
including any balance of risks versus benefits that they contain.85 It
81 Pre-LASPO 2012 cases on the interplay between FTR and standard recall, such
as R (Oakes) v Secretary of State for Justice and others [2010] EWCA Civ 1169,
must now be treated with caution. The reasoning in Oakes, which held that
after the FTR period the secretary of state was not under a continuing duty to
consider release against a ‘serious harm’ test, but could apply the lesser ‘risk
of any offending’ test, relied upon the statutory directions which have now
been withdrawn, and pre-dated the new legislative arrangements introduced by
LASPO 2012.
82 LASPO 2012 s128.
83 The Parole Board of England and Wales: Guidance to Members on LAPSO (2012),
December 2012, p5; available at: www.justice.gov.uk/downloads/offenders/
parole-board/guidance-on-laspo.pdf.
84 This was the rationale for the changes made for the imposition of the IPP
sentence between its introduction in 2005 and abolition in 2012.
85 D’Cunha v Parole Board [2011] EWHC 128. The emphasis of the current
directions, while still containing such a balance, is on the ‘risk reduction
aspect’ than earlier versions – see R (Austin) v Parole Board [2011] EWHC 2384
(Admin) and R (Leach) v Parole Board [2011] EWHC 2470 (Admin).
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50 Parole Board hearings / chapter 3
is the secretary of state’s current policy to accept such recommendations ‘unless it is considered that the recommendation is based on
material error of fact or the recommendation is entirely unreasonable in all the circumstances of the case’.86 When considering the
Board’s recommendation, the secretary of state must act fairly87 and
give its recommendation proper weight given it is the expert body
entrusted to assess the risks posed by prisoners.88
Evidence before the Board
Evidence generally
3.71
3.72
The PBR 2011 state that the Board may receive in evidence ‘any document or information whether or not it would be admissible in a court
of law’.89 It is therefore clear that formal rules of evidence do not
apply to the Board.90 In Roberts91 the House of Lords decided that
the Board’s primary statutory duty is to protect the public and that
this does allow flexibility in determining procedure and receiving evidence. However, this is against the proviso that the Board must not
adopt procedures that would effectively extinguish the right to a fair
hearing. Although the Lords were divided on whether a particular
procedure – in that case the adoption of a special advocate – would
cross the dividing line, the overall analysis emphasises the flexibility
that the Board has in relation to evidential matters.
The fact that the issue to decide is risk to the public, rather than
the establishing of facts, can mean that it is difficult to predict what
factual issues the Board will consider are most important.92
86 See evidence in R (Wilmot) v Secretary of State for Justice [2012] EWHC 3139
(Admin), which held that this did not meant that the secretary of state had
bound himself to rejecting recommendations only where unreasonable in the
Wednesbury sense.
87 R (Adetoro) v Secretary of State for Justice [2012] EWHC 2576 (Admin).
88 See, for example, R (Hill) v Secretary of State for the Home Department [2007]
EWHC 2164 (Admin).
89 PBR 2011 r25(6).
90 It has been held that the Board is not determining a criminal charge for the
purposes of ECHR article 6 when deciding whether to release a prisoner: R
(Smith and West) v Parole Board [2005] UKHL 1 para 40.
91 R (Roberts) v Parole Board [2005] UKHL 45.
92 For example, see the facts of R (M) v Parole Board [2013] EWHC 141 (Admin),
where the decisive issue in the Board’s decision was relationships, and
although this featured in the reports before the Board, there was little focus on
this issue at the hearing itself.
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Parole Board decision-making 51
The parole dossier
3.73
3.74
3.75
The PBR 2011 prescribes the basic contents of what dossiers prepared for Parole Board hearings should contain.93 There is also policy guidance that sets out detailed requirements as to what dossiers
should contain, and what the report writers should cover.94 These
requirements mean that in practice the Board will have a detailed set
of reports providing assessments of the risk posed by the prisoner.
Where the review engages ECHR article 5(4), it has been held
that it is sufficient for the Board to be provided with the basic reports
required by the PBR 2011, not necessarily reports that are capable
of showing that the prisoner demonstrated that his or her risk has
reduced to a level that would prompt release. This issue arose when
the courts were presented with the cases of a large number of prisoners serving IPP sentences with short minimum terms where the
Prison Service had not been resourced to provide any courses or other
means by which the prisoner could demonstrate a reduced risk. The
reports before the Board in such cases added nothing to the assessment of risk made by the sentencing court, and so were effectively
meaningless.
The House of Lords rejected a suggestion that article 5(4) requires
the Board to have anything more before it. Lord Brown, in an analysis that he acknowledged suggests that article 5(4) is all about form
rather than substance, stated:95
I have concluded that Article 5(4) requires no more than that ‘a court’
(the Parole Board) shall speedily decide whether the prisoner continues to be lawfully detained, and this will indeed be the case unless
and until the Board is satisfied of his safety for release (or so long has
elapsed without any effective review of his dangerousness that the
Article 5(1) causal link must be presumed broken as discussed above).
I accept that Article 5(4) requires the basic [PBR] dossier to be made
available: without this the Board simply cannot function. But I cannot
accept that Article 5(4) requires anything more in the way of enabling
the Board to form its judgment.
3.76
The Lords accordingly overturned the very purposive decision of
the Court of Appeal that considered that what might amount to an
93 PBR 2011 Sch 1 in relation to initial release and Sch 2 for recalls.
94 See para 9.16 for indeterminate sentence prisoners and para 6.13 for
determinate sentences.
95 R (James, Lee, Wells) v Parole Board [2009] UKHL 22, para 60; see also R (Smith
and West) v Parole Board [2005] UKHL 1, para 37.
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52 Parole Board hearings / chapter 3
‘empty exercise’ might well breach article 5(4).96 The courts have further accepted that, while the secretary of state might have a duty to
produce timely reports following the completion of offending behaviour work,97 that article 5(4) will not necessarily be breached because
the reports before the Board are not up to date.98
Disclosure of evidence
3.77
3.78
The PBR 2011 require all the evidence (subject to the exceptions set
out below) to be disclosed to the prisoner.99 This requirement is supplemented by detailed policy guidance on the practicalities of when
disclosure will take place in the various parole processes. While this
is clearly uncontroversial and now in accordance with requirements
of both common law fairness and article 5(4), it was only at the beginning of the 1990s that the domestic courts accepted that prisoners
were entitled to disclosure of the reports used to determine ­whether
they should be released.100 By that time cases in the ECtHR had
established that article 5(4) applied to the release of discretionary life
sentence prisoners101 and accordingly it was accepted that the need
for disclosure arose in those cases.
Withholding material from the prisoner
In some circumstances evidence can be withheld from the prisoner.
The provisions relating to this are in the PBR 2011.102 This is supplemented by guidance on the procedures that the secretary of state will
adopt forwarding material to the Board with a request that it is not
disclosed to the prisoner.103 These procedures, including the circumstances that material may also be withheld from the prisoner’s legal
representative, are dealt with more fully at para 9.33 below.
96 When the James, Lee and Wells case was subsequently heard by the ECtHR,
the court confirmed that the domestic parole proceedings together with the
availability of judicial review were sufficient to meet the requirements of
article 5(4): James v UK (2013) 56 EHRR 12 at para 232. However, the court
did hold that post minimum-term detention for this group of IPP prisoners
breached article 5(1) because of the systemic failure of the state to ensure that
they had any means to demonstrate a reduced risk to the public during the
minimum term – see further at paras 8.32–8.33.
97 R (Mehmet) v Secretary of State for Justice [2009] EWHC 1202 (Admin).
98 Jacob v Parole Board [2010] EWHC 3035 (Admin).
99 PBR 2011 r7.
100 R v Parole Board, ex p Wilson [1992] QB 740.
101 Thynne, Wilson and Gunnell v UK (1991) 13 EHRR 666.
102 PBR 2011 r8.
103 PSI 61/2010.
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Parole Board decision-making 53
3.79
3.80
3.81
Prejudicial and irrelevant material
The Board, when considering cases referred to it, is under a duty
to consider the evidence adduced before it,104 and in cases where it
makes recommendations any documents by the secretary of state.105
In a case concerning a determinate sentence prisoner, it has been
held that these provisions cannot prevent the Board, at an interim
stage in the parole process, from directing that the panel that makes
the final decision should not consider material in the dossier.106
Accordingly, where the Board is satisfied that the dossier contains
prejudicial and irrelevant material (such as documents relating to
allegations of criminal conduct not established by the sentencing
court) it can decide, when giving directions prior to the final hearing,
that such material should not be before the panel deciding release.
Such a procedure enables the Board both to act fairly and to comply
with the statutory duty to consider all the material placed before it.
As the Board is acting as a court when deciding whether to release
a prisoner, the executive cannot be permitted to interfere with its
independence by having the power to determine how it deals with
the evidence before it.107
Where a dossier does include such material, it may be necessary
to make an application for directions108 at an early stage requesting
that the Board excludes it from the dossier that is to be considered
by the panel deciding the question of release. At the time of writing,
the Board has not issued any guidance on how it intends to deal with
such applications. However, such applications may delay the parole
process and it may be that if there are only minor issues that these
can be clarified or rectified in representations to the Board, rather
than through seeking exclusion of the material altogether. This is
especially so as the court, in finding that the Board does have the
power to remove prejudicial material from the dossier, also stated
that it considered that the need to use the power was likely to arise
rarely.109
104 CJA 2003 s239(4).
105 CJA 2003 s239(3).
106 R (McGetrick) v Parole Board [2013] EWCA Civ 182 – accordingly, R v Parole
Board ex p Harris [1998] COD 223 (see para 6.17 of the previous edition of this
book) is no longer good law.
107 McGetrick para 34.
108 Under PBR 2011 r10.
109 McGetrick, para 32.
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54 Parole Board hearings / chapter 3
Witness evidence
3.82
Hearsay evidence
Two decisions of the Court of Appeal firmly concluded that hearsay
evidence is permissible at parole hearings, even in cases where the
hearsay evidence is contested and contradicted by oral evidence. The
question will normally be one of the weight to be given to the evidence rather than its admissibility. In Sim110 Keene LJ analysed the
issue in the following manner:
Merely because some factual matter is in dispute does not render hearsay evidence about it in principle inadmissible or prevent the Parole
Board taking such evidence into account. It should normally be sufficient for the Board to bear in mind that that evidence is hearsay and
to reflect that factor in the weight which is attached to it. However,
like the judge below, I can envisage the possibility of circumstances
where the evidence in question is so fundamental to the decision that
fairness requires that the offender be given the opportunity to test
it by cross-examination before it is taken into account at all. As so
often, what is or is not fair will depend on the circumstances of the
individual case.111
3.83
This was followed and applied to particular facts in Brooks.112 The
facts of the case are worth considering, as they illustrate how a pro­
cess that can appear fundamentally flawed by comparison with the
criminal trial process has been deemed acceptable in parole reviews.
The case concerned a discretionary lifer who had been recalled to
prison following allegations made by his partner that he had raped
her. The allegations had been made to the Probation Service and
repeated to the police, but the complainant had declined to pursue
criminal charges and indicated to the prisoner’s solicitors that she
wished to withdraw the charges. She declined to attend the parole
hearing113 but evidence was given about her allegations by the interviewing probation officer and the written statements were available.
The panel went on to find that the rape had occurred, on the balance
of probabilities (see further below). The Court of Appeal held that the
review had been conducted fairly, Kennedy LJ commenting:
110 R (Sim) v Parole Board [2003] EWCA Civ 1845.
111 R (Sim) v Parole Board [2003] EWCA Civ 1845, para 57.
112 R (Brooks) v Parole Board [2004] EWCA Civ 80.
113 Part of the case was concerned with whether appropriate steps had been taken
to secure her attendance – this is discussed in the section on securing the
attendance of witnesses at para 10.14.
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Parole Board decision-making 55
I, like Keene LJ in Sim can envisage the possibility of circumstances
where the evidence in question is so fundamental to the decision that
fairness requires that the offender be given the opportunity to test it
by cross-examination before it is taken into account at all. As Elias
J indicated in the present case, that could require production of the
complainant if someone in the position of [the complainant] was willing to testify, but as Keene LJ went on to point out, the requirements
of fairness depend on the circumstances of the individual case, and
in my judgment there was nothing unfair about the decision of this
panel to proceed as it did. As I have made clear, neither the Parole
Board nor the Secretary of State did anything to inhibit the claimant’s
opportunity to test by cross-examination the allegations of [the complainant] before those allegations were taken into account, but in the
particular circumstances of this case that opportunity was not worth
much, and the claimant’s solicitor was entitled to decide not to pursue
it more than she did.114
3.84
3.85
The approach in Brooks has been followed in other cases.115 However,
there has been at least one case where, in line with the principle set
out by Keene LJ in para 3.82 above, that it was unfair for the Board
to admit hearsay evidence. In Headley116 the prisoner, a 60-year-old
wheelchair user, was recalled after 15 years in the community following allegations made by his wife that he had threatened to kill
her with a firearm. The Board confirmed his recall without hearing
direct evidence from his wife. The court held that this was unlawful
as, but for the allegations, it is clear that he would not have been
recalled and in the particular circumstances of the case (which the
judge considered were ‘rare, perhaps even unique’117) it was incumbent on the Board to enable the prisoner to test the evidence by cross­examination. This was the case even though there was no evidence
that the prisoner applied for her to be directed to attend the hearing.
The attendance of witnesses
The PBR 2011 provide that the parties (the prisoner and the secretary of state) can make an application to call a witness to attend the
hearing.118 The Board does not have the power to compel the attendance of a witness but the parties can make an application to the High
Court to obtain a witness summons under the Civil Procedure Rules
114 R (Brooks) v Parole Board [2004] EWCA Civ 80, para 37.
115 R (Weszka) v Parole Board [2012] EWHC 827 (Admin).
116 R (Headley) v Parole Board [2009] EWHC 663 (Admin).
117 R (Headley) v Parole Board [2009] EWHC 663 (Admin), para 21.
118 PBR 2011 r22.
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56 Parole Board hearings / chapter 3
(CPR) 34.4.119 The practical issues relating to applying for witnesses
to attend the hearing are dealt with more fully at paras 10.10–10.19.
3.86
3.87
Measures to protect witnesses
In very exceptional cases it has been held that the Board is entitled
to adopt a special advocate procedure, where witnesses can give evidence in the absence of either the prisoner or the prisoner’s legal
representative (see discussion at para 9.40).
Similarly, in the case of Gardner120 it was held that the Board did
not act unlawfully when excluding the prisoner from part of a hearing
when his wife was giving evidence in support of allegations against
him, and in circumstances where she expressed herself as unwilling
to give evidence if he was in the same room, even though the rules
did not include any express provision for this. The prisoner’s advocate
was able to be present, and was allowed time to take instructions on
the evidence given, so the witness could be cross-examined. Following the House of Lords’ decision in Roberts (above), it was held that
the Board has inherent power to adopt such a procedure, and moreover there was no breach of article 5(4) of the ECHR in doing so, the
court citing the flexibility allowed by the ECtHR in article 6 cases.121
The burden and standard of proof in Parole Board hearings
3.88
3.89
Burden of proof and assessing risk
The wording of the statutory test for release states that the Board
needs to decide that detention is ‘no longer necessary’ to protect the
public before directing release. On its face this suggests that there is
a presumption that release will be refused unless the prisoner can
show he or she does not pose such a risk.
In looking at the question as to whether there is a requirement,
either for the prisoner to demonstrate that he or she does not pose
a risk, or for the secretary of state to demonstrate the necessity for
further detention, the courts to date have questioned whether the
concept of a burden of proof is truly relevant to the review process.
119 The power of the court to issue a witness summons in aid of an inferior court
or tribunal – the possibility of the use of this provision was recognised in
Brooks.
120 R (Gardner) v Parole Board [2006] EWCA 1222 (Admin).
121 For example, Doorson v The Netherlands (1996) 22 EHRR 330. In R (Morales) v
(1) Parole Board (2) Secretary of State for Justice (3) Staffordshire Probation Service
[2011] EWHC 28 Admin the court dismissed a claim that the lack of power on
the part of the Board to call witnesses breached article 5(4). The court noted that
CPR 34.4 enabled the parties to seek a witness summons if necessary.
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Parole Board decision-making 57
3.90
The favoured approach of the courts has been to suggest that the
task of the Parole Board is to make a decision based on the material
before it. In one case heard fairly soon after the oral parole system
had been established, the court accepted that there was no duty on
the secretary of state to ‘prove’ that the prisoner would pose a risk if
released:
[T]he Board must be satisfied that it is not necessary that he should be
kept in prison and not that there would be a substantial risk if he were
released. In other words it must be shown that the risk is low enough
to release him, not high enough to keep him in prison.122
3.91
3.92
The issue has been considered several times since the Human Rights
Act (HRA) 1998 was enacted. The original discretionary lifer panel
scheme was based very closely on the mental health review tribunals,
not least because it was often very hard to distinguish between those
who received discretionary life sentences and those who received
hospital orders. When it was established that the correct post-HRA
1998 test in the mental health context was that the burden of proof
rested with the secretary of state to justify detention,123 it was clear
that the issue needed to be resolved in the parole context.
Lord Bingham commented on this subject124 in R v Lichniak and
Pyrah.125 Parole reviews were touched upon as part of Lord Bingham’s finding that the system of review ensured the mandatory life
sentence did not breach ECHR article 3, and he cast considerable
doubt on whether there was actually a place for a burden of proof
when considering risk assessments in the parole context:
I doubt whether there is in truth a burden on the prisoner to persuade the Parole Board that it is safe to recommend release, since this
is an administrative process requiring the Board to consider all the
­available material and form a judgment. There is, inevitably, a balance
to be struck between the interest of the individual and the interest of
society, and I do not think it objectionable, in the case of someone
who has once taken life with the intent necessary for murder, to prefer the latter in case of doubt.126
122 R v Parole Board ex p Lodomez (1994) 26 BMLR 162 at p18.
123 R (H) v North London and East Region Mental Health Review Tribunal [2001] 3
WLR 512.
124 Although his comments were obiter as the main decision in the case was that
the mandatory life sentence itself was not an arbitrary punishment and so was
compatible with article 5(1) and article 3.
125 R v Lichniak and Pyrah [2002] UKHL 47.
126 R v Lichniak and Pyrah [2002] UKHL 47 at 16.
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58 Parole Board hearings / chapter 3
3.93
3.94
3.95
3.96
3.97
3.98
The judgment left as much open as it resolved, to the extent that it
shied away from the burden of proof approach while at the same
time hinting that it was not for the prisoner to prove anything. It
also dates from a time when the release of mandatory lifers had not
been held to fall within the ambit of article 5 and so the Board’s duty
remained administrative rather than judicial.
The one case that attempted to confront the problem head on
was Hirst.127 The application was made by a lifer prior to his parole
review taking place. A declaration was sought in relation to the burden of proof, but the application was dismissed as being premature.
Although the court declined to make a finding, it indicated that, if
forced to reach a conclusion, the opinion expressed by Lord Bingham
would be most likely to prevail. The position of Mental Health Act
(MHA) 1983 detainees was distinguished on the grounds that lifers
are only detained once a court has already established that they posed
a risk to the public. MHA detainees are subject to executive detention
and so there needs to be judicial supervision to determine whether
the grounds for detention are made out.
The approach of the courts in relation to assessing risk has therefore been that it is the Board’s duty to consider all the available
­material. In doing this the Board will not be requiring either party to
‘prove’ its case, but will reach a view as to whether the prisoner poses
the requisite risk or not.
The only situation where a different approach has been ­adopted
is in the case of extended sentence prisoners recalled during the
extension period. As it is presumed by the statutory framework that
the extension period can be served in the community, the Board is
required to be ‘positively satisfied’ that recall is necessary to protect
the public.128
Whether a different approach is required where the Board is
resolving disputed issues of fact is discussed below at para 3.99.
The standard of proof
When discussing the issue of whether the prisoner poses too high a
risk to be released it is misleading to talk of a standard of proof. The
question is rather, what is the level of risk that will justify detention?
(See the discussion above at para 3.40.)
127 R (Hirst) v Parole Board [2002] EWHC 1592 (Admin).
128 R (Sim) v Parole Board and another [2003] EWCA 152 (Admin) – and the court
made a declaration under HRA 1998 s3 that the relevant statutory test had to
be read in this way (para 55).
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Parole Board decision-making 59
3.99
3.100
It is well established that the Board when deciding issues of
contested fact is required to apply the civil standard of proof. For
­example, this was the approach in Re D.129 Accordingly, even where
a prisoner has been found not guilty of conduct leading to recall, it
will be open to the Board to decide whether the facts leading to the
recall have been made out on the civil standard. In Re D the Lords
held that greater cogency of evidence was needed in cases where the
allegations are more serious.130 They went on to confirm that there is
a single standard of proof in civil matters (the balance of probabilities) and it is the application of that standard that is flexible. Thus for
a more serious allegation, it is not the standard of proof that changes but the strength or quality of the evidence needed to prove the
allegation.131
While issues of contested fact might arise in release hearings
(such as an allegation of an assault in prison) they are much more
likely to arise in relation to allegations of misconduct leading to
recall. In purely practical terms, the burden of proving the contested
fact will fall on the party seeking to establish it, as it will be for that
party to adduce evidence of the necessary cogency.
Parole Board procedures
Procedures generally
3.101
3.102
As noted above, the Board’s procedure is primarily governed by its
statutory framework, including the PBR 2011. However, as the Board
is required to act as a court it is required to interpret its statutory
duties sufficiently flexibly so as to achieve fairness.
For example, it is established that the Board has a general power
to adjourn consideration of cases referred to it. This was confirmed
in the case of Andersson,132 where the Board itself was arguing against
such a power, apparently concerned over the administrative burden
129 [2008] UKHL 33.
130 Applying the principles adopted in the child protection case of H (minors
sexual abuse: standard of proof [1996] AC 563.
131 Although successfully persuading the Board that a particular act did not occur
may not be enough – for example, see R (Wyles) v Parole Board [2006] EWHC
493 (Admin) where the practical application of this approach permitted the
Board to make a finding that a prisoner had not committed an assault but that
his general behaviour surrounding the incident gave rise to sufficient cause
for concern to justify his recall.
132 R (Andersson) v Parole Board [2011] EWHC 1049 (Admin).
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3.103
occasioned by adjourned hearings. The court held that, applying
James (see para 3.76 above), it was for the Board, when acting as a
court, to ensure that it is sufficiently informed to make a properly
informed decision on the issues referred to it. Accordingly it is necessary for its statutory powers to be interpreted to ensure it has a
general power to adjourn a case when necessary.133
The statutory framework also has limitations. Although the Board
has a power under the PBR 2011 to issue directions relating to the
timetable for the proceedings, how evidence should be served or withheld and the attendance of witnesses, 134 it has no power to enforce
its own directions. It has been held that, nevertheless, this does not
mean that it is incapable of acting in a sufficiently court-like manner
so as to satisfy the requirements of article 5(4).135
Oral hearings
3.104
The current position in summary is that:
• Indeterminate sentence prisoners can only be released after an
oral hearing, but the Board can refuse to release such prisoners
on consideration of the papers.136 The Board will decide whether
a case should proceed to an oral hearing on the basis of the principles set out in Osborn and Booth. It is the Board’s policy always
to hold an oral hearing to consider the recall of indeterminate
sentence prisoners.
• As a matter of policy, the Board will currently only recommend
that indeterminate sentence prisoners be transferred to open conditions after an oral hearing,137 and will apply the same principles
in deciding whether to hold one as in release cases.
• The Board can make release decisions (including after recall) in
relation to determinate and extended sentence prisoners without
a hearing.138 It is the Board’s policy to hold oral hearings where the
prisoner is under 18. Otherwise the Board will consider whether a
hearing is required applying the same principles (insofar as they
are relevant) as apply in indeterminate sentence cases.
133 R (Andersson) v Parole Board [2011] EWHC 1049 (Admin), para 15.
134 PBR 2011 r10.
135 R (Morales) v Parole Board [2011] EWHC 28 (Admin).
136 PBR 2011 Part 3.
137 Although such decisions can be made without one: PBR 2011 r15(1).
138 PBR 2011 r15(1).
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Parole Board decision-making 61
3.105
3.106
3.107
At the time of the first case in which article 5 was held to apply to
the administration of discretionary life sentences by the ECtHR, the
Board did not have directive powers of release in periodic reviews,
and even in recall cases the procedure adopted did not provide for full
disclosure of any adverse material. Accordingly, article 5(4) was held
to have been breached without consideration as to whether an oral
hearing was required.139 However, when the CJA 1991 introduced
procedures to consider the post-tariff release and recall of discretionary lifers, and gave the Board the power to direct release, procedures
for disclosure and the holding of oral hearings were also introduced
into the parole process for the first time.140
When the Parole Board was first empowered to direct release,
it did not seem in doubt that where article 5(4) was engaged when
the Parole Board was considering whether to release a prisoner that
there was a right to an oral hearing. As the release of successive categories of life-sentenced prisoners was held to engage article 5(4) the
rules governing hearings were amended to include the right of the
prisoner to require the Board to hold an oral hearing.141
This assumption was given compelling support by a succession
of decisions of the ECtHR. For example, when the ECtHR confirmed
that an article 5(4) review was necessary to review the post-tariff
release of HMP lifers, it stated:
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 on his dangerousness, Article 5
para 4 requires an oral hearing in the context of an adversarial proced­
ure involving legal representation and the possibility of calling and
questioning witnesses.142
3.108
When the ECtHR came to examine the cases of adult mandatory lifers
at a time when the Board could not direct their release, it appeared to
mandate an oral hearing where article 5(4) was engaged even where
there were no disputed facts, and no prospect of release:143
139 Weeks v UK (1987) 10 EHRR 293, paras 63–68.
140 In the Parole Board Rules (PBR) 1992.
141 PBR 1992 r10; PBR 1997 r10 included the right to an oral hearing for HMP
and automatic lifers, and PBR 2004 r12(2) for mandatory lifers and extended
sentence prisoners recalled during the extension period.
142 Hussain and Singh v UK (1996) 22 EHRR 1, para 60.
143 Von Bulow v UK (App No 75362/01), 7 January 2004, para 24: in this case
the prisoner was in category C conditions and none of the reports before
the Board supported release. In Wynne v UK (No 2) (2004) 38 EHRR 42 the
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62 Parole Board hearings / chapter 3
While the Parole Board reviewed the applicant’s case in 2001, it did
not have any power to order his release and could only make recommendations to the Secretary of State. Nor did any oral hearing take
place, with the opportunity to examine or cross-examine witnesses
relevant to any allegations that the applicant remained a risk to the
public.
3.109
3.110
3.111
However, it was a case that primarily examined the procedural
requirements of fairness under the common law rather than those
of article 5(4) which led to a challenge to the accepted view that art­
icle 5(4), where the Board is assessing risk, necessitates an oral hearing.144 The developing judicial role of the Board, necessitated by the
need to carry out article 5(4) compliant reviews, has clearly impacted
on how the courts now view the Board’s duties to act fairly in accordance with the common law.
When two determinate sentence prisoners in Smith and West
challenged the refusal of the Board to hold oral hearings to determine whether they had been correctly recalled, the House of Lords
decided that there may be an entitlement to an oral hearing in such
circumstances, even though there was no possibility of detention in
breach of article 5(1).145 The decision was surprising, as in terms of
what the common law requires it marked a significant shift from
Doody.146
In Smith and West the Lords did not decide that common law fairness always required an oral hearing. As the issue is fact-­sensitive,
it is worth quoting all three Lords who delivered opinions. Lord
Bingham:147
The common law duty of procedural fairness does not, in my opinion, require the board to hold an oral hearing in every case where a
determinate sentence prisoner resists recall, if he does not decline the
offer of such a hearing. But I do not think the duty is as constricted as
has hitherto been held and assumed. Even if important facts are not
in dispute, they may be open to explanation or mitigation, or may lose
prisoner was in a high security prisoner, yet the court’s decision finding a
breach of article 5(4) referred to a lack of an oral hearing in similar terms.
144 Although prior to the coming into force of the HRA 1998 the common law
had been slow to enhance the parole process – see para 3.7 above.
145 R (Smith and West) v Parole Board [2005] UKHL 1.
146 R v Secretary of State for the Home Department ex p Doody [1994] 1 AC 531
where it was held that the setting of a minimum period that those convicted
of murder would have to serve in prison required disclosure of the material
which would form the basis of the decision and an opportunity to make
written representations.
147 R (Smith and West) v Parole Board [2005] UKHL 1 at para 35.
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Parole Board decision-making 63
some of their significance in the light of other new facts. While the
board’s task certainly is to assess risk, it may well be greatly assisted
in discharging it (one way or the other) by exposure to the prisoner
or the questioning of those who have dealt with him. It may often be
very difficult to address effective representations without knowing the
points which are troubling the decision-maker. The prisoner should
have the benefit of a procedure which fairly reflects, on the facts of
his particular case, the importance of what is at stake for him, as for
society.
Lord Slynn:148
There is no absolute rule that there must be an oral hearing automatic-ally in every case. Where, however, there are issues of fact, or where
explanations are put forward to justify actions said to be a breach of
licence conditions, or where the officer’s assessment needs further
probing, fairness may well require that there should be an oral hearing. 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. On any view the applicant should be told that an
oral hearing may be possible though it is not automatic; if having
been told this the applicant clearly says he does not want an oral hearing then there need not be such a hearing unless the board itself feels
exceptionally that fairness requires one.
Lord Hope:149
I agree therefore that the common law test of procedural fairness
requires that the board re-examine its approach. A screening system
needs to be put in place which identifies those cases where the prisoner seeks to challenge the truth or accuracy of the allegations that led to
his recall, or seeks to provide an explanation for them which was not
taken into account or was disputed when his recall was recommended
by his supervising probation officer. Consideration then needs to be
given to the question whether it is necessary to resolve these issues
before a final decision is made as to whether or not the prisoner is
suitable for release. If it is, an oral hearing should be the norm rather
than the exception.
3.112
The House of Lords did not merely hold that common law fairness
may necessitate an oral hearing in the context of the recall of determinate sentence prisoners. They also held that article 5(4) would
be breached if the Board did not hold one where it was required by
the common law even if the question it was considering was not
capable of determining whether detention was lawful under article
148 R (Smith and West) v Parole Board [2005] UKHL 1 at para 50.
149 R (Smith and West) v Parole Board [2005] UKHL 1 at para 68.
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3.113
3.114
3.115
5(1).150 The Smith and West decision was not criticised by the House
of Lords in Black even though its conclusion on article 5(4) appears
to fall precisely into the error identified by Lord Brown in that case
– that of saying that article 5(4) is engaged because of the identity of
the ­ decision-maker, rather than by the nature of the decision (see
para 3.25 above).
Smith and West established that the common law may not always
require an oral hearing, but that where it does the Board will also
breach article 5(4) by not holding one. It does not obviously follow,
especially in the light of the cases referred to above, that where art­
icle 5(4) is necessarily engaged an oral hearing is optional. However,
following Smith and West the courts have held that the engagement
of article 5(4) does not mandate an oral hearing and that the test
for whether one is required is the same as that under the common
law.151 This has led to amendments to the PBR that for the first time
permitted the Board to deny oral hearings to life sentenced prisoners
at the end of the tariff or minimum term.152
Following this change to the PBR, there were a large number of
cases where those serving indeterminate sentences challenged the
decision by the Board not to hold an oral hearing. In many of these
cases, there was a concern that the courts had lost sight of the need,
identified in Smith and West, to take into account the fact that to
refuse a prisoner an oral hearing ‘may lead to a lack of focus on him
as an individual. This can result in unfairness to him, however much
care panel members may take to avoid this’.153
The removal of an entitlement to an oral hearing for indeterminate
sentence prisoners who had served their minimum term encouraged
precisely the same kind of institutional reluctance to allow an oral
hearing when required by fairness for these prisoners as had been
criticised in Smith and West. This approach was encouraged by the
Board’s own guidance to members on when an oral hearing should
be granted when considering the initial release of indeterminate sentence prisoners. This suggested that it was only where a positive outcome for the prisoner was likely on the basis of the written evidence,
or where it was considered that the assessment of risk required live
150 R (Smith and West) v Parole Board [2005] UKHL 1, Lord Bingham at para 37;
Lord Hope at para 75.
151 R (O’Connell) v Parole Board [2007] EWHC 2591 (Admin) at para 22, although
the Court of Appeal subsequently overruled the finding that article 5(4) was
engaged in the context of this case.
152 Parole Board (Amendment) Rules 2009 SI No 408 – see now PBR 2011 r17.
153 R (Smith and West) v Parole Board [2005] UKHL 1, para 66.
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Parole Board decision-making 65
3.116
evidence, that an oral hearing would be granted.154 A restrictive interpretation of when fairness might require an oral hearing was also
often provided by the courts in light of this guidance.155
Such cases did not appear to be completely in accord with the
original ECHR case-law on the issue. In Waite v UK, for example, the
approach was summarised in the following terms:156
In matters of such crucial importance as the deprivation of liberty and
where questions arise involving, for example, an assessment of the
applicant’s character or mental state, the Court’s case law indicates
that it may be essential to the fairness of the proceedings that the
applicant be present at an oral hearing. In such a case as the present,
where characteristics pertaining to the applicant’s personality and
level of maturity and reliability are of importance in deciding on his
dangerousness, Art. 5(4) requires an oral hearing in the context of an
adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.157
3.117
3.118
The issue of whether indeterminate sentence prisoners who had
served the minimum term were entitled as of right to an oral hearing
before the Board was eventually considered by the Supreme Court in
the case of Osborn and Booth.158 This, together with Smith and West,
now provides definitive guidance as to when the Board is required
to convene an oral hearing whenever it considers a referral from the
secretary of state.
The Supreme Court was critical of the Parole Board’s approach
and is far closer in approach to the original ECHR assessments. In
a similar vein to the House of Lords judgment in Smith and West, it
considered that the problem could properly be resolved through the
application of domestic common law, but that this was informed by
the requirements of article 5. At the time of writing, the Board has
not had the opportunity to prepare a new policy to take account of the
rather trenchant criticism of its practice, but the judgment clearly
shifts the balance in favour of an oral hearing being held where the
prisoner requires it. Lord Reed provided helpful guidance at the outset of the judgment, and although lengthy, it is a valuable reference
154 Parole Board practice guidance for oral hearings, January 2011, available at: www.
justice.gov.uk/offenders/parole-board/oral-hearings.
155 See, for example, R (Yusuf) v Parole Board [2010] EWHC 1483 (Admin);
Ismailaj v Parole Board [2011] EWHC 1020 (Admin); R (Byrne) v Parole Board
[2011] EWHC 2598 (Admin); R (Boylan) v Parole Board [2012] EWHC 1233
(Admin).
156 (2003) 36 EHRR 54.
157 See also Hussein v UK (1996) 22 EHRR 1.
158 Osborn and Booth v Parole Board [2013] UKSC 61.
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66 Parole Board hearings / chapter 3
point for assessing whether a case meets the threshold for an oral
hearing (as well as helping to illustrate where the earlier decisions
had fallen into error):159
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 psych­
iatrist. 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
159 Osborn and Booth v Parole Board [2013] UKSC 61, para 2.
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Parole Board decision-making 67
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 post­tariff 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.
xii) The common law duty to act fairly, as it applies in this context, is
influenced by the requirements of article 5(4) as interpreted by the
European Court of Human Rights. Compliance with the common law
duty should result in compliance also with the requirements of article
5(4) in relation to procedural fairness.
xiii) A breach of the requirements of procedural fairness under article
5(4) will not normally result in an award of damages under section 8
of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty.
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68 Parole Board hearings / chapter 3
Parole Board decisions
Reasons
3.119
3.120
The PBR 2011 impose a duty on the Board to give written reasons for
its decisions where a panel reaches a decision. The reasons must be
signed by the chair of the panel and provided to the parties not more
than 14 days after the end of the hearing.160 It is also accepted that
the Board is under a duty to give reasons for decisions taken on the
papers.
Where there is a duty to give reasons, the courts require them to
be ‘proper, adequate and intelligible’.161 The courts have held that the
reasons given must:
... focus on the question of risk to which their decision is directed …
the Board should identify in broad terms the matters judged by the
Board as pointing towards and against a continuing risk of offending
and the Board’s reasons for striking the balance as it does. Needless to
say the letter should summarise the considerations which have in fact
led to the final decision. It would be wrong to prescribe any standard
form of decision letter and it would be wrong to require elaborate or
impeccable standards of draftmanship.162
3.121
Following oral hearings, the Board has issued its own guidance on
how decisions should be structured.163 This suggests that the decision
should be divided into sections dealing with the evidence considered,
an analysis of the prisoner’s offending, the identified risk factors,
evidence of how the prisoner has changed during the sentence, an
assessment of risk of re-offending and of serious harm, the plans to
manage that risk, and the panel’s conclusions on these issues and its
decision.
Record of the hearing
3.122
3.123
It is clearly good practice for prisoners’ representatives to keep their
own note of a hearing in case there is a dispute arsing from the
Board’s decision as to evidence given to the panel.
The PBR 2011 do not include a duty on the Board to keep a record
of the any hearing. In practice the Board does not arrange for hearings to be recorded for later transcription. However, in recognition
160 PBR 2011 r26.
161 In re Poyser and Mills’ Arbitration [1964] 2 QB 467.
162 R v Parole Board ex p Oyston (2000) Independent 17 April, CA.
163 Parole Board oral hearings guide, March 2012, Annex G.
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Parole Board decision-making 69
that there may well be disputes over what evidence has been given it
has long been established that it is:
... necessary for a sufficient note to be made of the proceedings by or
at the direction of the panel. Such is the obligation of a county court
judge in ordinary proceedings in those courts. The note should be
produced by the Board upon the grant of leave to apply for judicial
review with reference to a decision.164
3.124
The Board’s Oral hearings guide issued in March 2012 states that ‘[i]t
is considered part of the panel chairs job to take as good a note as
possible’.165 The duty of the panel chair to keep a record of the hearing which is disclosable has been recently re-affirmed by the Divisional Court:
In our view it is the responsibility of the Board to ensure that a proper
record is made of each hearing and in particular the evidence given
at it. As there is no audio or visual recording of the proceedings (and
there is no reason for them to be recorded), then the full note which
the chair makes of the evidence and the proceedings is the record of
the proceedings. The panel is making a decision which may determine
whether a person continues to be deprived of his liberty, ­whether he
is set free, or the conditions under which he may be detained; we
were referred to numerous authorities which set that out. A proper
record of what happened is obviously essential, as the Parole Board
recognises. For example, a record of the proceedings and evidence
before the panel may be essential if proceedings for judicial review
are brought. But it can also be essential if the evidence given is relied
on at a further hearing.166
3.125
3.126
This duty does not require the Board to provide a transcription or
disclosure of the record after each hearing. The court considered that
it would be infrequent that there would be a need to examine and
disclose the record, the most likely circumstances being where disclosure is required in judicial review proceedings, or where a dispute
as to evidence arises in a further hearing before the Board.167
The court recognised that there is a distinction between the notes
kept by the panel chair which constitute the record of the hearing, and
any notes which kept by panel members, including the chair, which
are made during the hearing ‘solely for the purpose of assisting in
and in preparation for the reaching of the reasoned decision; they are
164 R v Parole Board ex p Gittens (1994) Times 3 February – quoted in R (McIntyre)
v Parole Board [2013] EWHC 1969 Admin, para 19.
165 Oral hearings guide, Part 3, para 4.
166 R (McIntyre) v Parole Board [2013] EWHC 1969 (Admin), para 20.
167 R (McIntyre) v Parole Board [2013] EWHC 1969 (Admin), para 34.
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70 Parole Board hearings / chapter 3
3.127
not a record of the proceedings. Their absolute confidentiality is integral to the independent and impartial decision making function of a
judge or tribunal or panel member and the proper administration of
justice’.168
The court criticised the Board’s practice of failing to ensure that
a record of the hearing was not preserved and indicated that the
Board will be required to develop a policy to rectify this error in its
practice.
168 R (McIntyre) v Parole Board [2013] EWHC 1969 (Admin), para 23.
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