In court
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| DOI | 10.1177/0264550514552783 |
| Subject Matter | In court |
In court
The Journal of Community and Criminal Justice
Probation Journal
In court
2014, Vol. 61(3) 306–323
ª The Author(s) 2014
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DOI: 10.1177/0264550514552783
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Nigel Stone, Visiting Fellow in the School of Psychology, University of East Anglia,
reviews recent appeal judgments and other judicial developments that inform sen-
tencing and early release.
Discretionary release
Oral hearings: Now the norm
Dealing with three unrelated but thematically connected cases, the Supreme Court
in a judgment given by Lord Reed has provided guidance of fundamental impor-
tance for prisoners, serving both determinate and indeterminate sentences and
whether recalled or still unreleased after sentence, who remain in custody because
of their risk on the circumstances in which the Parole Board is required to hold an
oral hearing in considering the validity of, and the grounds for, their continuing
detention. In consequence there will be considerably less, even marginal, scope for
the Board to conclude its review of a prisoner’s case ‘on the papers’, i.e. by relying
on the reports and other dossier documentation and will be required to conduct a
hearing with live evidence being tested in questioning. The key considerations are
fairness and the prisoner’s legitimate interest in being able to participate in the
process. This in turn has no small implications for probation staff, both prison and
community-based, who will be witnesses in these proceedings. Report writers will
need to be more careful, clear and circumspect in the interpretations and assess-
ments they offer the Board, in the knowledge that they are likely to be required to
defend and justify their stance.
Lord Reed helpfully provided at the outset a summary of his conclusions:
(i) In order to comply with common law standards of procedural fairness, the Board
should hold an oral hearing before determining an application for release, or for a
transfer to open conditions, whenever fairness to the prisoner requires such a hearing
in the light of the facts of the case and the importance of what is at stake. By doing so
the Board will also fulfil its duty under s6(1) of the Human Rights Act 1998 to act com-
patibly with article 5(4) of the European Convention for the Protection of Human
Rights and Fundamental Freedoms, in circumstances where the Article is engaged.
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(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 ten-
dency 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 mate-
rially assisted by hearing evidence, for example from a psychologist or psychiatrist.
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 representa-
tions 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 manage-
ment 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 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 dif-
ferent 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 post-tariff 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.
308
Probation Journal 61(3)
(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 or expense.
(xi) The Board’s decision, for the purposes of this guidance, is not confined to its deter-
mination of whether or not to recommend the prisoner’s release or transfer to open con-
ditions, 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) on procedural fairness.
(xiii) A breach of the requirements of procedural fairness under article 5(4) will not nor-
mally result in an award of damages under HRA 1998 s8 unless the prisoner has suf-
fered a consequent deprivation of liberty.
Applying these principles to the individuals whose detention had prompted the
judgment:
Osborn O. had incurred a six year determinate term of imprisonment on con-
viction of putting people in fear of violence by harassment, and possession of an
imitation firearm, during an incident when he was said to have brandished the
imitation firearm at the home of his estranged wife. At point of release in February
2009 he was assessed as presenting a very high risk of harm, and was placed
under surveillance from the point of his leaving prison. He was recalled to custody
the same day, after arriving late at the approved premises (AP) where he was
required to live, 20 minutes after the start of the curfew time specified in his licence,
having visited an address en route.
Probation concerns The offender manager raised concerns about O.’s willing-
ness to comply with licence conditions, reporting that O. had stated to him, before
being released, his refusal to comply with the requirements of his licence, initially
challenging whether he should be required to reside at approved premises, and
also challenging the extent of an exclusion zone. The offender manager had also
received information that on the day of his release, when reminded that he could not
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have access to firearms, O. had said ‘not for another two hours’. He was reported to
have said that he would be back in prison shortly after he had done what he needed
to do. It was also reported that shortly before O. had left the address which he had
visited en route he had telephoned the AP manager to tell her that he would be late,
falsely stating his location. On returning to his car he had removed and rearranged
items in the boot. This gave rise to concern in view of his comment about access to
firearms. He was also reported to have told the AP manager earlier that week that he
could not share a room as he had a multi-personality disorder. The offender man-
ager considered...
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