Michael Osborn v The Parole Board
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE LANGSTAFF |
| Judgment Date | 19 March 2010 |
| Neutral Citation | [2010] EWHC 580 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/5423/2009,Case No: CO/5423/2009 |
| Date | 19 March 2010 |
[2010] EWHC 580 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Manchester Civil Justice Centre (Administrative Court)
HANDED DOWN AT LEEDS
Before: Mr Justice Langstaff
Case No: CO/5423/2009
Mr Jagadesham (instructed by Harrison Bundy Solicitors) for the Claimant
Mr Manknell (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 26 th February 2010
MR JUSTICE LANGSTAFF:
The claimant seeks to quash a decision of the Parole Board of 5 th June 2009 to refuse to grant him an oral hearing in respect of the Board's decision to refuse to recommend his release from prison following recall in February 2009.
The Law.
In R (on the application of Smith and West) v. The Parole Board [2005] UKHL 1 at paragraph 35 Lord Bingham stated:
“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.”
Taken in isolation, that statement would suggest that in some cases an oral hearing is necessary, whereas in others it is not. Earlier in his speech at paragraph 31, Lord Bingham had identified 2 broad classes of case in which an oral hearing was necessary. Thus in paragraph 31, he said
“While an oral hearing is most obviously necessary to achieve a just decision in a case where facts are in issue which may affect the outcome, there are other cases in which an oral hearing may contribute to achieving a just decision. The possibility of a detainee being heard either in prison or, where necessary, through some form of representation has been recognised by the European Court as, in some instances, a fundamental procedural guarantee in matters of deprivation of liberty…”
It was the second class of case to which the rest of paragraph 35 appears to have been directed. After the passage cited above, Lord Bingham continued:
“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 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.”
Thus on the facts of Smith itself (see paragraph 46) the ability to make effective representations and orally to put a case at an oral hearing was required, even though the outcome would not necessarily have been different.
One of the cases of which play has been made by Mr Jagadesham on behalf of Mr Osborn was that of Waite v UK [2003] 36 EHRR 54, to which reference was made by Lord Bingham in Smith and West. Waite was serving an indeterminate sentence. He was released, then recalled. He did not dispute the facts which led to his recall. However, he submitted that issues arose concerning his character and mental state which rendered an oral hearing essential to the fairness of the proceedings. The UK Government argued that the Parole Board was “bound to conclude that public protection required that he be confined” (see paragraph 55 of the judgment). The court (paragraph 59) said:
“The court is not persuaded by the Government's argument which appears to be based on the speculative assumption that whatever might have occurred at an oral hearing the Board would not have exercised its power to release. Article 5(4) is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention – an applicant is not required, as a precondition to enjoying that protection, to show that on the facts of his case he stands any particular chance of success of obtaining his release. In matters of such crucial importance as 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, Article 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses…”
It should be noted, however, that in Bereza v Poland [2008] ECHR 248 the Court rejected a claim that the applicant should have been present personally at hearings relevant to his continuing detention: questions of assessment of his character and mental state did not arise relevantly on the facts. Thus, it can safely be stated:
a) Oral hearings are not required in all cases (Cranston J. in R (H) v. The Secretary of State for Justice [2008] EWHC 2590 (Admin) added “…or even most cases”, but I do not for myself think that a quantitative approach should be adopted)
b) The question of whether or not an oral hearing will be necessary in any given case will depend upon the facts;
c) The context in which procedural fairness is being considered, in the light of those two facts, is determinative: as Cranston J. said in R (H) v Secretary of state for Justice [2008] EWHC 2590
“what falls to be considered is the extent to which an oral hearing will guarantee better decision making in terms of the uncovering of facts, the resolution of issues, and the concerns of the decision maker, due consideration being given to the interests at stake”.
The Facts.
The claimant was born on the 11 th March 1972. Before he was 18, he acquired a number of convictions for acquisitive and driving offences, but also for assault occasioning actual bodily harm, threatening behaviour and the possession of an offensive weapon. In 2006 he was convicted of putting people in fear of violence by harassment (between 26 th November 2005 and 21 st February 2006) and of the possession of an imitation firearm (20 th February 2006). It was alleged (though aspects of this are disputed by the claimant) that in the course of this offence he entered the home of his estranged wife wearing a balaclava and brandishing a firearm. It is said that his young daughter was present in the house at the time.
He was sentenced to 6 years imprisonment. The custodial part of that sentence expired on the 20 th February 2009, when he was released. He was recalled on the same day. He broke his conditions of release by arriving late at his hostel, having taken a detour that he did not disclose to the hostel. He blamed his lateness on traffic, whereas in fact he had diverted from a direct route to the hostel in order to visit an address at 19 Hilltop View in Handsacre, it being said by the Probation Service that he stayed there for 29 minutes before leaving to go to the hostel, arriving there about 20 minutes late and outside a curfew (part of his licence conditions) by the same margin.
His offender manager wrote to him on the 24 th February to tell him that he had been recalled on two counts: a failure to report to the hostel without delay, and choosing to make a detour on route such that he did not achieve his first hostel curfew time requirement, which began at 12 noon. He was invited to make representations about it. The Ministry of Justice added that in view of the offences for which he was originally sentenced, the risks suggested by his offending history and his behaviour as described in a breach report completed by the Probation Service, which was attached to the letter, the Secretary of State was not satisfied that it was right for him to remain on licence.
The breach report was completed by the offender manager, Mr Holsey, and dated 6 th March. Mr Holsey said within it that in telephone calls from the claimant, the claimant had stated his absolute refusal to comply with the requirement of his licence. He had challenged that he should reside at approved premises, challenged his exclusion zone, and reiterated to Mr Holsey that he would in fact disappear for the weekend after release with his partner and their son. He had stated that he understood the inevitability of ensuing recall and would challenge his licence conditions from within the prison environment. Mr Holsey described how Mr Osborn had on two separate occasions scribbled through some of his licence conditions when presented with them in the week before his release, and wrote his opinion of them (indicating his disagreement) on the document. Mr Holsey had been told (“information received” was the source) that on the day of his release the claimant had stated his intent not to meet with his offender manager and that he had been generally difficult. Of greater significance perhaps was that when he was reminded of his firearms licence and that he could not have access to firearms he was reported to have said “not for another 2 hours” while grinning, and was reported to have said he would be back in prison shortly after he had done what he needed to do.
It was said in the report that shortly before he left the address in Handsacre he had telephoned the hostel manager to tell her that it was likely that he...
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