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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Owen, R (On the Application Of) v Parole Board for England and Wales [2025] EWHC 590 (Admin) (21 March 2025) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2025/590.html Cite as: [2025] EWHC 590 (Admin)

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IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
ADMINISTRATIVE COURT

		Cardiff Civil and Family Justice Centre 2 Park Street Cardiff CF10 1ET
		21st March 2025

This judgment was handed down remotely at 10.00am on 21^st March 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives ..............................

Mr Justice Eyre:

Introduction.

1. The Claimant is a serving prisoner having been recalled after his release on licence. On 23^rd September 2024, the Defendant refused the Claimant's request that there should be an oral hearing of his parole review. The Claimant challenges that decision pursuant to permission given by HH Judge Keyser KC. The Claimant contends that the circumstances were such that fairness required an oral hearing of the parole review. The Defendant and the Interested Party have adopted a neutral stance and took no part in the proceedings save that the Defendant's Acknowledgement of Service provided some background information in relation to the relevant statutory provisions. It follows that the only party represented at the hearing before me on 10^th March 2025 was the Claimant.
2. At the conclusion of that hearing, I explained in brief terms why I accepted the Claimant's contentions. I directed the quashing of the Defendant's decision and made a consequential direction that the Defendant convene an oral hearing to consider the parole review. This judgment sets out the full reasons for my decision.

The Factual Background.

3. On 20^th February 2015 the Claimant was sentenced to a total of 14 years' imprisonment for 8 offences of indecent assault on a female aged under 14 and 5 offences of rape of a female aged under 16. The relevant offending occurred between 1999 and 2004 and the victims were the daughters of the Claimant's partner. The Claimant's sentence expires on 28^th January 2029.
4. The Claimant was released on licence on 1^st February 2022. However, he was recalled on 16^th June 2022 and returned to custody on 18^th June 2022.
5. The Claimant's recall was considered by the Defendant at an oral hearing in July 2023. The Defendant concluded that the recall was appropriate and, as a consequence, the Claimant remained in custody. The Claimant's recall had been triggered by the discovery that he was seeking to form sexual relationships with two women who had children and by concern that he had concealed this conduct from his offender manager. The Claimant does not accept that characterisation of his actions. Although he accepts that he cannot now go behind the recall decision, he does say that the correct analysis of his actions remains relevant and that is a matter to which I will return below.
6. There was to be a further review of the Claimant's detention in 2024 and in preparation for that the Claimant's solicitors submitted written representations contending, inter alia, that the review should be by way of an oral hearing. Those representations ran to 19 pages and 104 paragraphs. For current purposes it is relevant to note that:

i) Reference was made to the fact that the Claimant had pleaded not guilty and that he still maintained his innocence but that this of itself was not to be seen as a barrier to progression.

ii) Reference was made to the circumstances of the Claimant's recall. It was accepted that the Claimant had broken the terms of his licence, but he contended that the two women with whom he had been in contact had been known to him for many years; that he was not in a sexual relationship with either of them; and that he had told the probation service that he was using dating apps.

iii) In respect of risk reduction, the submissions said:

"56. A's engagement with his sentence plan has been completed the best he can and his position in terms of risk reduction is therefore highly unusual, and he has done everything he can to reduce his risk.

57. A is due to start Horizon in mid-August 2024, and we understand that he will complete the course by the end of November 2024.

58. This is the only course that A can complete, and it will significantly reduce his risk.

59. The course will have been completed by the time that he has an oral hearing."

iv) At [78] the submissions said:

"In the circumstances, due to material facts of the Applicant's case his matter would benefit from oral evidence being adduced. Contributing factors include, but are not limited to; the nature of the Applicant's sentence, the length of time in prison, the condition of the Applicant's Dossier and that he will have completed all core risk reduction work by November 2024. The Applicant seeks an oral hearing, in the alternative, for the reasons which are set out below."

v) At [81] it was said that fairness required an oral hearing to enable "a comprehensive assessment of the [Claimant's] risk to the community".

vi) Then at [83] – [84] the solicitors said:

"83. In the Applicant's case, an oral hearing would be appropriate as the issues within the instant case are based, in part on the testimony of the Offender Manager. It would be unfair to the Applicant to permit some of the evidence within the recall reports to remain unchallenged and the errors, which we will detail later.

84. Moreover, given the type of sentence which the Applicant is subject to, the length of time which the Applicant may have to remain in the prison estate, is disproportionate to have this matter disposed of without oral evidence."

vii) At [87] the submissions asked for clarification of the position in respect of the question of whether the Claimant was to be regarded as having Offender Personality Disorder or OPD saying:

"We ask for clarity around OPD. A states there is dispute about this as different people say different things – the Dossier says meets criteria, OPD letter states he doesn't meet the criteria, and POM says he is borderline."

viii) At [89] – [95] the submissions listed matters which it said were factual errors in the material in the dossier provided to the Defendant. At [96], the solicitors said that in light of those factual errors, it was to be doubted how well the offender manager knew the Claimant.

7. On 30^th July 2024, the Defendant refused the application for an oral hearing and, having reviewed the Claimant's detention, concluded that there should be no direction for release. In that decision, the Defendant explained the conclusion that there should not be an oral hearing thus:

"When reviewing the case, the Panel has found there to be sufficient information available within the dossier to make an informed decision about risk. The Panel has considered the case against the principles set out in the Supreme Court judgment relating to Osborn, Booth & Reilly [2013] UKSC 61, and does not find that there are any reasons for an oral hearing. The following factors were taken into account-

• The Panel considered whether an oral hearing would assist in assessing the risk posed and concluded that in this case it would not. Mr Owen has not completed any work at present to address his core risk, in fact there are further indications that those risk factors are active. Whilst the Panel noted the potential that he will complete Horizon soon, this is not guaranteed, and Mr Owen will also need a period of consolidation when this is completed.

• The Panel also considered Mr Owen's legitimate interest in participating in the process and whether there were tenable grounds to suggest that an oral hearing was necessary to allow him to effectively put his case. The Panel concluded it was not.

• The Panel also considered the entire period since his recall and noted that Mr Owen had an oral hearing at his last review; this is not a case where the prisoner has not had an opportunity to address the Parole Board post recall.

• The Panel also considered the issues raised by Mr Owen's representatives concerning factual dispute. Whilst it was accepted that this may be the case, the Panel did not consider that factual determination of them would be necessary to consider the risk posed by Mr Owen."

8. In its analysis of the position as it was at the time of that hearing, the Defendant said:

"2.3. Mr Owen's recall was due to him commencing relationships with females with children and failing to appropriately notify his COM. Mr Owen's contact with these females was sexual in nature."

9. The Defendant's conclusion then stated:

"4.1. The Panel considered all the evidence within the dossier.

4.2. The Panel noted no factors supporting re-release.

4.3. The Panel considered the following factors of concern-

• Mr Owen's lack of insight into his offending and risk factors

• Mr Owen's failure to have completed core risk reduction work

• Mr Owen's continued pursuit of a relationship

• Mr Owen's previous deception around licence conditions in the

Community

4.4. The Panel concluded that Mr Owen still poses a serious risk of harm in the community. The Panel took the view that risk could not safely be managed by way of supervision/licence conditions, because Mr Owen would not abide by them, and does not at present have sufficient internal controls to mitigate his risk.

4.5. In considering the foregoing, the Panel was not satisfied that it is no longer necessary for the protection of the public that Mr Owen should be confined and as a result declines to direct release."

10. The Claimant was entitled to make further submissions repeating the request for an oral hearing. Such submissions were made by his solicitors on 20^th August 2024. The following aspects are of note:

i) It was contended, at [7], that in the July 2024 decision the Defendant's duty member had "focused on the outcome of any hearing rather than how fair a decision would be".

ii) At [9], the solicitors said that the Claimant had commenced the risk reduction course and would be likely to have concluded this by the time of any oral hearing.

iii) Having referred to the decision of the Supreme Court in R (Osborn) v Parole Board [2013] UKSC 61, [2014] AC 115 the solicitors said, at [11]:

"In making the above submission the Claimant highlights the following:

a) At ii(a) of Osborn there is clear reference to 'facts in dispute', the Claimant denies both the factual matrix giving rise to the decision to recall, and the necessity of the same. It is accepted that the position in respect of the recall has previously been examined at an earlier parole review, and as much as there is no basis to re-open this finding and consider afresh, the recall is and remains relevant in respect of the question of re-release, and therefore to simply discount the Claimant's position on the issue is wrong.

Second, there is a clear dispute in respect of risk and its manageability. Third, there is a clear dispute in terms of what is required of the Claimant going forward to demonstrate a reduction in risk."

iv) At [14] and [15] it was said that there was a dispute as to the reliability of the psychological reports and it was submitted that updated reports should be obtained.

v) At [43] and 44] the submissions identified aspects of the earlier decision with which the Claimant took issue saying:

"43. Mr Owen's lack of insight into his offending and risk factors – A maintains his

innocence and this cannot be used against him. Mr Owen's failure to have completed core risk reduction work – this is starting so no issues and will be completed by the time of an oral hearing. Mr Owen's continued pursuit of a relationship – this is not a risk factor and can be managed through Licence Condition's. A has not offended in a relationship. Mr Owen's previous deception around licence conditions in the community – he knows his Licence Condition's and the breach only happened because it slipped by mistake. And if probation were seeing him more regularly then it would haven't been such a problem, as they did not see them for 4 weeks (no fault of A) but that this was their fault and the conditions say he should see probation every week, and they failed in this.

44. Page 4 -Mr Owen has continued to develop a relationship with a female with children whilst in prison since his last hearing. There is also reporting from the

prison of inappropriate behaviour towards female staff members – the children are in long term foster care and no way that she is having them back, and probation are fully aware of this.

A disputes the inappropriate staff relationship – he struggles to talk to male peers due to his past. He never asks staff about their personal life."

vi) The points of factual dispute with the dossier which had been identified before were repeated at [52] and following, it being said at [52]:

"We have previously explained about the various issues with the dossier, however the member who reviewed the decision has not considered these points or made directions to ensure that A has a fair hearing by ensuring that the evidence is accurate."

11. The position was reviewed by the Defendant and in its decision of 23^rd September 2024 the application for an oral hearing was again refused. In that decision the Defendant's duty member recited the history in brief terms and then said:

"According to the recent legal representations, Mr Owen does not accept the appropriateness of the recall. This is not a matter for the Parole Board at this stage as it has already been decided upon. Mr Owen is due to start Horizon and the request is to hold an oral hearing immediately after it concludes. Having considered the provisional MCA Decision and the legal representations, the Duty Member did not find that important facts are in dispute, that an oral hearing is needed to properly make an assessment of risk, or so that Mr Owen can put his views across effectively. The legal representations do not make a material difference to the position, taking the MCA panel's paper decision into account."

The Legal Framework.

12. The decision of 30^th July 2024 was made pursuant to Rule 19 of the Parole Board Rules 2019. This provides for an initial paper consideration of whether the prisoner is suitable or unsuitable for release and of whether an oral hearing should be directed. Rule 20 provides that if a panel decides that a prisoner is unsuitable for release and decides not to direct an oral hearing, the prisoner may then apply for an oral hearing. When such an application is made, Rule 20(5) provides that a different member of the Defendant must reconsider the question of whether there should be an oral hearing. In this case, that reconsideration led to the decision of 23^rd September 2024.
13. In Osborn Lord Reed (with whom the other members of the Supreme Court agreed) explained both the approach to be taken by the Defendant when considering whether to hold an oral hearing and the approach the court is to take to challenges to decisions not to hold an oral hearing. As Foster J noted in R(Somers) v Parole Board [2023] EWHC 1160 (Admin) at [23], the principles enunciated by Lord Reed are to "form the backbone of any consideration as to affording an oral hearing where release or transfer to open conditions is in issue".
14. The test is whether fairness requires a hearing, and the potentially relevant considerations were set out thus by Lord Reed at [2]:

"It may be helpful to summarise at the outset the conclusions which I have reached.

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 section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.

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 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 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 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 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.

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."

15. The considerations identified at sub-paragraphs (i), (ii a, c, and d), (iv), (v), (x), and (xi) are of particular note in the current case.
16. At [65], Lord Reed explained that the court is to "determine for itself whether a fair procedure was followed" and that its function is "not merely to review the reasonableness of the decision-maker's judgment of what fairness required".
17. Then, at [67] – [71], Lord Reed noted that although fair decision-making was likely to result in an objectively better result than decision-making that was not fair achieving better outcomes was not the sole purpose of requiring fairness in decision-making. That requirement fulfils two further purposes. First, that of paying respect to those whose rights are significantly affected by the decision in question. At [68] Lord Reed said "… respect entails that such persons ought to be able to participate in the procedure by which the decision is made provided they have something to say which is relevant to the decision to be taken". The second further purpose is the rule of law in that "procedural requirements that decision-makers should listen to persons who have something relevant to say promote congruence between the actions of decision-makers and the law which should govern their actions" [71].
18. In Somers Foster J explained, at [54] and [55], that the circumstances of those serving life sentences after the tariff portion of their sentences have been served are such that there is tantamount to a presumption that fairness will require an oral hearing the case of such a prisoner. I note that the claimants in Osborn and in the other cases to which I will refer were post-tariff life prisoners. The Claimant here is not such a prisoner. The need for an oral hearing is particularly acute in the case of a post-tariff life prisoner but the test remains in all cases whether fairness requires there to be an oral hearing in the circumstances of the particular case. It does not follow from the fact that there is a quasi-presumption in favour of an oral hearing in the case of post-tariff life prisoners that there is a contrary presumption that fairness will not normally require an oral hearing in the case of other prisoners. All will depend on the circumstances of the particular prisoner and of the particular case.
19. Mr Buckley referred to the decision of HH Judge Belcher in R (McKilligan) v Parole Board [2024] EWHC 336 (Admin). That decision illustrates the application of the Osborn approach to particular circumstances but I do not understand the learned judge to have been doing other than explaining the consequences of such application to the circumstances of that case. I respectfully agree with Judge Belcher that whether fairness requires a hearing will involve a consideration of the nature of the disputed issues which have to be resolved. Thus, a dispute as to the assessment of risk based on differences of opinion between expert witnesses is unlikely, without more, to call for an oral hearing (see at [21]). The learned judge was also right to emphasise, at [37], that a prisoner seeking an oral hearing does not have to demonstrate that the paper decision in respect of release was wrong "or even that it may have been wrong". As Judge Belcher pointed out the issue is whether an oral hearing is appropriate and not whether the outcome will be any different after an oral hearing.
20. Similarly, the decision of Fordham J in R (Clarke) v Parole Board [2025] EWHC 190 (Admin) is a further illustration of the application of the Osborn approach. Fordham J emphasised again that the question is not whether an oral hearing is necessary to get the right result but whether fairness requires an oral hearing when proper regard is had to the practical scope and effect of the review exercise and to the importance of participatory justice.

Discussion and Analysis.

21. The question, therefore, is whether fairness required an oral hearing in light of the approach laid down in Osborn.
22. Fairness does not require there to be a hearing whenever there is a dispute of fact regardless of how peripheral the facts in dispute are. Thus, fairness would not necessitate a hearing where the disputed facts are clearly irrelevant to the decision to be made. Potentially, there will be no need for a hearing if the relevant duty member proceeds entirely on a prisoner's version of any disputed facts. An oral hearing will normally be necessary if the facts in dispute are relevant to the issue to be decided and this will also normally be the position if resolution of the factual dispute is even potentially relevant to the outcome. In assessing potential relevance, regard is to be had to the considerations enunciated in Osborn at 2(ii)(a) and (c) and (iv).
23. The decision made on 30^th July 2024 took account of the fact that there had been an oral hearing in 2023 and regarded it as relevant (and as a factor militating against an oral hearing) that the Claimant had, therefore, had an opportunity to address the Parole Board since his recall. The fact of such an oral hearing could be a relevant consideration if it was common ground that there had been no change of circumstances since the earlier oral hearing. Fairness will not normally require a prisoner to be given multiple opportunities to address the Parole Board in person on the same facts. It will, however, be an extremely rare parole review case where it will be possible to say that there has been no change at all since an earlier oral hearing. That is certainly not the position in this case. Thus, at [2.5] of the 30^th July 2024 decision, the Claimant's alleged conduct since the earlier hearing is taken into account as a matter of significance. In those circumstances, the fact that there had been an earlier oral hearing does not advance matters and does not assist in assessing whether fairness required an oral hearing in the circumstances as they were as at September 2024.
24. Conversely, the continuing dispute about the matters leading up to the Claimant's recall is not a factor in favour of an oral hearing. The Claimant accepts that he cannot reopen the recall decision but says that proper analysis of his behaviour leading to the recall remains relevant to the current assessment of the level of risk. On his behalf, it is said that as a consequence of this he should have been allowed to advance his contentions as to that behaviour at an oral hearing. I do not accept that argument. The Claimant is right to say that the circumstances leading to his recall remain relevant to the assessment of risk but that does not mean that fairness requires an oral hearing so that he can again advance his arguments about those matters. That would amount in reality to an attempt to go behind the recall decision and to ventilate the same factual issue at multiple hearings. If this consideration had stood alone, it would not have caused me to conclude that fairness required there to be an oral hearing.
25. That consideration does not, however, stand alone. There are other areas of disputed fact and, in addition, there are matters where clarification is appropriate.
26. The first area of dispute relates to the Claimant's conduct in prison since the 2023 hearing. It was being said against the Claimant that in the period since that hearing he had continued to seek to form a relationship with a woman who had children and that there had been inappropriate behaviour towards female staff members. Both of those matters had, at the very least, potential relevance to the current assessment of the risk posed by the Claimant. Both were matters where the Claimant had challenged the account being advanced in the dossier and where, moreover, the challenge took the form not of a bare denial but of a contrary account of what had happened and of the proper interpretation of the Claimant's actions.
27. Next, there had been a change in that the Claimant had begun to engage in risk reduction work. This was potentially significant. The fact that, as a consequence of the Defendant's listing timetable, the risk reduction work would have been completed by the time of any oral hearing would not justify an oral hearing. Whether fairness required an oral hearing was to be determined in light of the circumstances as they were at the time of the decision. Nonetheless, the fact that the Claimant was engaging in risk reduction work was potentially very significant in relation to insight and to the assessment of risk. It is of note that the potential completion of the course was referred to in the July 2024 decision but with the caveat that there was no guarantee of completion. The Claimant's involvement in the course; his progress on it; and his commitment to it were all matters of potential relevance and were all matters capable of being explained and explored at an oral hearing.
28. The Claimant's solicitors pointed out that there were differing assessments as to whether the Claimant met the criteria for a finding of an Offender Personality Disorder. Those differing assessments could be explored at an oral hearing but could not adequately be resolved simply on the papers.
29. In addition, the Claimant's solicitors identified a number of respects in which it was said that the material provided by the Offender Manager contained errors of fact. These were comparatively minor matters, and some were simply points of detail. However, there was force in the contention that when taken together they cast doubt on the reliability of the material being provided to the Defendant.
30. The foregoing points related to issues where there was scope for nuance and for differing interpretations. The credibility of the Claimant's assertions and explanations in respect of those matters depended in large part on the assessment which was made of his credibility generally. In both the 30^th July 2024 decision and in that of 23^rd September 2024 it was said that an oral hearing was not necessary in order for the Claimant to be able to put his views across. That analysis is not persuasive. In order for the Claimant to be able to advance his views on matters such as these it was not sufficient for his disagreement with the contents of the dossier to be expressed in writing by his solicitors. Instead, for his position properly to be advanced, it was necessary for him to be able to articulate it orally and to respond to questions exploring his account. It was also necessary for there to be an opportunity to question those advancing different accounts or interpretations.
31. I am satisfied that when matters are seen in the round, fairness requires there to be an oral hearing. In the absence of a hearing, there is a real risk of the decision about the Claimant's liberty being made on a factual basis which he wishes to dispute and which he believes to be incorrect. A basis, moreover, in respect of which the Claimant has competing points to advance and where it cannot be said that the asserted factual dispute is fanciful. Whether the points which the Claimant seeks to advance, and his factual assertions are ultimately accepted and whether the outcome will ultimately be different, are not the relevant questions. The position instead is that there will be unfairness if the Defendant proceeds to its determination without the Claimant being given an opportunity to advance his case at an oral hearing.
32. It follows that the claim succeeds and the decision under challenge is to be quashed.