Wednesday Law Report: Parole Board breached duty of procedural fairness

February 2005 Regina (on the application of Smith) v Parole Board; Regina (on the application of West) v Parole Board ([2005] UKHL 1) House of Lords (Lord Bingham of Cornhill, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Walker of Gestingthorpe and Lord Carswell) 27 January 2005

BY FAILING to offer two determinate-sentence prisoners oral hearings of their representations against revocation of their licences, the Parole Board had breached its duty of procedural fairness and had accordingly violated article 5(4) of the European Convention on Human Rights.

The House of Lords allowed the appeals of Justin West and Trevor Smith against the decisions of the Court of Appeal to dismiss their applications for judicial review.

In the appeals of the claimants, Justin West and Trevor Smith, the issue arose as to the procedure to be followed by the Parole Board when a determinate-sentence prisoner, released on licence, sought to resist subsequent revocation of his licence.

The claimants contended that such a prisoner should be offered an oral hearing at which he could appear and, either on his own behalf or through a legal representative, present his case. They based their argument on the common law and on articles 5 and 6 of the European Convention on Human Rights, relying on both the criminal and civil limbs of article 6.

Whilst the board accepted that in resolving challenges to revocation of their licences by determinate-sentence prisoners it was under a public law duty to act in a procedurally fair manner, that in some cases - as where there was a disputed issue of fact material to the outcome - procedural fairness might require it to hold an oral hearing at which the issue might be contested, and that it might in the past have been too slow to grant such hearings, it strongly resisted the submission that there should be any rule or presumption in favour of an oral hearing in such cases.

Edward Fitzgerald QC and Phillippa Kaufmann (Bhatt Murphy) for Smith; Richard Clayton QC and Kris Gledhill (Kaim Todner) for West; David Pannick QC and Kristina Stern (Treasury Solicitor) for the Board.

Lord Bingham of Cornhill said that the common law duty of procedural fairness did not require the board to hold an oral hearing in every case where a determinate-sentence prisoner resisted recall, if he did not decline the offer of such a hearing. However, the prisoner should have the benefit of a procedure that fairly reflected, on the facts of his particular case, the importance of what was at stake for him, as for society.

In cases such as the present, the sentence of the trial court satisfied article 5(1), not only in relation to the initial term served by the prisoner, but also in relation to revocation and recall, since conditional release subject to the possibility of recall formed an integral part of the composite sentence passed by the court.

The review of the board would satisfy the requirements of article 5(4) provided it was conducted in a manner that met the requirement of procedural fairness referred to above.

A revocation hearing did not involve the determination of a criminal charge within the terms of article 6. The distinguishing feature of a criminal charge was one that might lead to punishment. A challenge to revocation of a licence might lead to detention imposed to protect the public, but it could not lead to punishment.

In each of the present cases the board had breached its duty of procedural fairness owed to the claimant by failing to offer him an oral hearing of his representations against revocation of his licence, and was accordingly in breach of article 5(4).