The King (on the application of David Clarke) v Parole Board for England and Wales

Hearing date: 16.1.25

Draft judgment: 20.1.25

Approved Judgment

This Judgment was handed down remotely at 10am on Friday 31 st January 2025 by circulation to the parties or their representatives by email and by release to the National Archives.

Introduction

The single issue for me to decide was encapsulated by Mr Withers for the Claimant in these ten words:

Did fairness require an oral hearing in the Claimant's case?

The authoritative guidance is found in R (Osborn) v Parole Board [2013] UKSC 61 [2014] AC 1115. This is the relevant legal obligation ( Osborn §2(ii)):

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 .

The Board rightly says in its standard template document, attached in the present case as an Annex to its first-stage decision (13.2.24):

Any request for an oral hearing will be considered by the Board, and where fairness requires it, an oral hearing will be granted .

The Board is an independent judicial entity which has made its decision on what fairness requires. That is an objective, “hard-edged” question for the judicial review court to decide for itself ( Osborn §65), on the materials which were available to the Board, and illuminated by the Board's reasons insofar as the judicial review court finds them persuasive. In this claim, the Board and the Secretary of State for Justice (“SSJ”) have adopted neutral positions.

Context

The Claimant was sentenced on 23.2.05 aged 29 to life imprisonment for the murder of James Conroy, with a tariff of 20 years less time served, giving rise to a tariff expiry date of 23.6.24. On a first (pre-tariff) review in 2022, the Board conducted an oral hearing (on 26.10.22), having adjourned on 8.2.22 to allow the Claimant's representatives to file a report (17.3.22) of an Independent Psychiatrist (“IP” Eve Hepburn). The Claimant was at that time at HMP Coldingley. At the 2022 hearing the Board heard from the Claimant, his advocate (Robin Hill), Ms Hepburn, the Prison Psychologist (“PP” Paul Cairney) and the Prison Offender Manager (“POM” Rachel O'Donnell). Ms O'Donnell had produced a POM Report dated 27.9.22 and Mr Cairney a PP Report (16.12.21) including a psychology risk assessment. The fact of the 2022 oral hearing achieved “seeing” the prisoner to assess how he had “developed over the period since [his] conviction” (Osborn §87); and engages the observation that factors favouring oral hearings will not “necessarily apply on every occasion” on which the Board conducts a review (Osborn §112). In its pre-tariff review decision (24.11.22) the Board recorded that there were some positives, with the Claimant having progressed over the last 2 years, but decided against recommending transfer to open conditions. The decision recorded that PP Cairney considered that the best way forward was through a Personality Disorder Pathway (“PDP”), whereas IP Hepburn saw other ways forward. In notifying that outcome (4.1.23) the SSJ told the Claimant that “to allow sufficient time for you to complete further work required to reduce your risk and demonstrate your progress your review period is set at your on-tariff review which is June 2024”.

The June 2024 target month for consideration by the Board was designed to coincide with the tariff expiry (23.6.24), after an on-tariff review targeted to start in October 2023. Mr Withers says that since an on-tariff review is designed as the first decision to govern post-tariff custody, Article 5(4) ECHR should apply, at least to the issue of deciding the issue of release or continued incarceration. On that basis he invokes the Osborn §112 observation about oral hearings “in most cases”, which stands as the apparent source of Foster J's inferred presumption in R (Somers) v Parole Board [2023] EWHC 1160 (Admin) at §55 (after §25). Nothing turns on whether that is right.

The SSJ's formal Referral for the on-tariff review (9.23) asked the Board to consider the appropriateness of a release-direction or transfer-recommendation; to give disclosable “full reasons” for any decision; and to identify any continuing areas of risk that need to be addressed; but the Board was not being asked to comment on any specific treatment needs or offending behaviour work required.

The Claimant's representatives made a request for an oral hearing (2.1.24). A Panel member made a reasoned first-stage decision pursuant to rule 19 of the Parole Board Rules 2019/1038, deciding “on the papers” that the Claimant is neither suitable for release or transfer to open conditions, and declining to direct an oral hearing. The Claimant's representatives made a rule 20(1) application for an oral hearing (23.2.24) supported by typed representations from the Claimant himself (23.2.24) and five letters of support from prison staff regarding his behaviour (7.3.24). A different Panel member made a second-stage decision pursuant to rule 20(5) that the case should not be determined at an oral hearing, with the consequence that the reasoned first-stage decision went from being provisional to being final pursuant to rule 20(6).

The Claimant had been transferred to HMP Aylesbury on 12.5.23, after which he was referred to the PDP and then screened onto the PDP on 5.7.23. That is recorded in a Community Offender Manager Report (“COM” Heather Brearley) dated 20.11.23. A POM Report (Katy Tripcony) dated 10.11.23 says “whilst he screens in, they are unable to allocate him a worker at this time” and “I am hopeful that Mr Clarke will choose to engage when the times comes”. A PP Note (Aliye Emirali) dated 10.8.23 appears not to have appreciated the fact of the screening-in to PDP (5.7.23), instead expressing optimism that screening-in would take place. The Emirali PP Note said “once engaging with this service, it is suggested that [the Claimant] would require a minimum of one year before” a further PP “risk assessment is completed”. The Emirali PP Note references the Cairney PP Report (16.12.21) having considered PDP as the best way forward. It says “conversations with COM [Brearley] and POM [Tripcony] concur” and describes “a clear understanding of Mr Clarke's identified work outstanding that is aimed at reducing his serious risk of harm”, recommending engagement with Aylesbury PDP Service. The Brearley COM Report (20.11.23) says transfer and release are not supported by COM Brearley given the “core risk reduction work outstanding for completion”. The Tripcony POM Report (10.11.23) says the Claimant has “agreed to work with [PDP] when he is able to”, but “has not been able to engage in any offending behaviour work or address any sentence plans objective”.

It was in light of these materials that the adverse first-stage paper decision (13.2.24) recorded that there were core outstanding treatment needs, with “an identified [PDP]”, and “no support for progression or release with core outstanding treatment needs apparent”; and the adverse second-stage paper decision (15.3.24) recorded that “there are outstanding treatment needs, including engaging with [PDP]”. This outstanding PDP work is the first strong theme in the two adverse decisions.

The second strong theme in the adverse decisions relates to the Claimant's “concerning behaviour”. The Tripcony POM Report (10.11.23) is laden with references to the Claimant being under the influence, failing drugs tests, refusing to attend meetings, having negative entries, having an adverse Security Report with a single entry (17.10.23), having an ongoing adjudication, and refusing prison food. An updated Security Report (L. Rogers) dated 7.11.23, included in the dossier, has six entries relating to the Claimant's behaviour, each assessed as carrying a HIGH likelihood that the event occurred. The first-stage paper decision contains repeated references – in four different paragraphs – to the Claimant's concerning behaviour.

There is an apparent link between the two themes. The reference in the Tripcony POM Report to PDP being “unable to allocate [the Claimant] a worker at this time” is immediately followed in the same paragraph by a number of points: that PDP is “currently working to capacity”; that it is “a voluntary service that Mr Clarke has previously refused”; and that there are “several other concerns” which are “linked to his drugs use and his food refusal that could hinder his engagement”. Further, POM Tripcony says in her “conclusion” that the Claimant has not been able to engage in any offending behaviour work or address any sentence plans objectives “due to [his] presentation, his own reluctance to walk, and his on-going battle with the prison around his food”.

The Outcome-Utility Approach to Oral Hearings

If the governing principle, for when fairness requires an oral hearing, entailed the prisoner identifying a realistic prospect of their succeeding after the oral hearing with the “outcome” of a release-direction (s.28(5)(b) of the Crime (Sentences) Act 1997) or transfer-recommendation (s.239 of the Criminal Justice Act 2003), the Claimant could not succeed. The Board's adverse first-stage and second-stage reasons would stand as a persuasive basis for refusing the oral hearing. The...