IN Osborn v Parole Board [2013] UKSC 61, [2013] 3 W.L.R. 1020, the Supreme Court considered the circumstances in which the Parole Board is required to hold an oral hearing before deciding whether a prisoner should be released from prison on licence or transferred to open prison conditions. In each of the three appeals considered jointly by the court, an anonymous single-member panel of the Parole Board had decided, on paper, that the prisoner should not be released. The prisoners' requests for oral hearings before a multi-person panel had each been refused, and the prisoners sought judicial review of the Parole Board's decisions not to grant them an oral hearing. In the Supreme Court, arguments on the prisoners' behalf were made primarily on the basis of article 5(4) of the European Convention on Human Rights (“ECHR”), which provides guarantees of procedural fairness for those who have been lawfully detained. Nonetheless, the Supreme Court's judgment has wider ramifications for the common law requirements of procedural fairness, clarifying the circumstances in which the common law will require oral hearings to be held.
Lord Reed gave the judgment of the court. He began by bemoaning the fact that the appellants' cases had been argued with a focus on Strasbourg case law rather than domestic law. He said it was erroneous “to suppose that because an issue falls within the ambit of a Convention guarantee it follows that the legal analysis of the problem should begin and end with the Strasbourg case law” (at [63]). Because Convention rights are stated in general terms, they have to be fulfilled though a substantial body of more specific domestic law, both statute and common law. Human rights law “permeates our legal system” (at [55]), and “[t]he Convention cannot therefore be treated as if it were Moses and the prophets” (at [56]). Solutions to human rights problems, said Lord Reed, ought to be sought primarily from domestic law: either through statutory interpretation, or through the application and development of the common law.
Lord Reed thus turned to common law principles of procedural fairness to assess the legality of the Parole Board's decisions, beginning by stating the general purpose of the principles. He accepted that the principles were important in helping to ensure better administrative decisions in which a correct answer was reached. However, he emphatically rejected an approach to procedural fairness that was solely based on utilitarian calculations as to the impact that a particular requirement of procedural fairness might have on an administrative decision. Instead, a robustly non-instrumental conception of procedural fairness was put forward, focussing on the inherent dignity of human beings. The principles of procedural fairness were important, said Lord Reed, because they gave practical expression to the “respect due to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions” (at [68]). This analysis was supported by empirical research demonstrating the importance of allowing prisoners to make an active contribution to the making of decisions which directly affect them.
This non-instrumental understanding of the principles of procedural fairness clearly guided Lord Reed when he set about outlining the general circumstances in which an oral hearing is required. The fact that a prisoner's liberty was at issue was especially emphasised. In particular, Lord Reed said that with regard to prisoners with indeterminate sentences who had served the mandatory tariff period of their sentence, the anxiousness of the scrutiny required by the board in determining the risk posed by the prisoner would increase the longer the prisoner was incarcerated; the greater the scrutiny required, the greater the necessity of an oral hearing. Lord Reed also made it clear that the chance of a prisoner succeeding at an oral hearing was irrelevant to the question of whether an oral hearing should be granted. Relatedly, the trouble or expense that an oral hearing would bring about was not a relevant consideration: the requirements of fairness do not bend to such utilitarian criteria.
Lord Reed endorsed the approach taken by a majority of the House of Lords in R (Smith and West) v Parole Board [2005] UKHL 1, [2005] 1 W.L.R. 350, where it was emphasised that oral hearings will usually be required where facts important to the Parole Board's decision are in dispute, or where a significant explanation or mitigation has been advanced by the prisoner which needs to be heard orally if it is to be accepted. But he made it equally clear that these are not the sole circumstances in which an oral hearing will be required. In a given case, there might be little real dispute over the facts, but still an oral hearing might be required where, for other reasons, the Parole Board cannot otherwise make an independent assessment of the risk posed by a prisoner. One such case would be where the characteristics of the prisoner are relevant to the board's decision: characteristics can best be judged by seeking or questioning the prisoner in person. Similarly, where psychological evidence about the prisoner is questioned, an oral hearing might be more appropriate: the nature of such evidence means it is best presented in the dynamic setting of an oral hearing, particularly as the psychologist on the Parole Board's panel will be able to assess the evidence fully, to the benefit of non-experts on the panel. Oral hearings will also be appropriate where an otherwise final decision will have significant consequences, such as on how a prisoner is managed in the future.
Lord Reed also made some more specific comments about the Parole Board's decision-making process. He said that the board had historically been too reluctant to hold oral hearings. It was wrong for the Parole Board to take the view that oral hearings would only be appropriate where a single-member panel had decided to recommend the release or transfer of a prisoner. Single-member panels' decisions, he emphasised, were provisional only, and oral hearings were not to be considered as appeals from such decisions, suitable only in exceptional cases. “The prisoner does not have to demonstrate that the decision [of the single-member panel] was (or may have been) wrong: what he has to persuade the board is simply that an oral hearing is appropriate” (at [33]).
Applying these principles to the facts, Lord Reed held that the common law requirements of procedural fairness had not been satisfied in any of the prisoners' appeals. This meant that the Parole Board had acted unlawfully, both under domestic law and under article 5(4) ECHR. In the case of two of the appellants, Osborn and Reilly, important facts relevant to the Parole Board's decisions were in question and were either disputed by the prisoners, or required mitigation or explanation. Furthermore, in the case of Reilly, the finality of the single-member panel's decision compounded its unfairness, as the decision had important consequences for how the prisoner would be managed in the future. In the case of the other appellant, Booth, important issues had been raised on which the input of a psychiatrist would have been useful, and which merited the deeper consideration that an oral hearing could provide. The Supreme Court allowed each appeal, issuing declarations that the Parole Board's decisions were unlawful.
Lord Reed's judgment represents an important contribution to English public law. The impact of the Supreme Court's decision will be felt most of all in the administrative context in which it was decided. As Lord Reed noted, an institutional reluctance on the part of the Parole Board to holding oral hearings has continued since it was first commented on by Lord Hope in Smith and West. The effect of Osborn should be that a larger number of oral hearings are now held by the Parole Board.
Equally important, however, is what the decision in Osborn has to say about the principles of procedural fairness more broadly, and the relationship between domestic law and the ECHR. With regard to the former point, Osborn represents an emphatic assertion of a non-instrumental approach to procedural fairness in administrative law. Questions of cost and administrative efficiency were downplayed, while human dignity and the importance of people playing a part in the making of decisions which affect them were both emphasised. Crucially, the question of whether a given procedure would lead to a different outcome was rejected as irrelevant to the question of what procedural fairness required.
With regard to the relationship between domestic law and the ECHR, Osborn contributes to an increasingly prominent line of judicial and extra-judicial argument emphasising the importance of domestic law in ensuring adequate protection of fundamental rights. The case will no doubt prove highly significant in the ongoing debate about the common law's role in human rights protection, serving as a sort of judicial insurance policy and safeguarding the courts' powers to protect human rights in the face of any future repeal of the Human Rights Act 1998 or withdrawal from the ECHR.
