Tue, 04 Aug 2020
In R(Grinham) v the Parole Board of England & Wales and the Secretary of State for Justice [2020] EWHC 2140 (Admin) the High Court quashed a decision of the Parole Board where it found that a prisoner’s oral hearing and a subsequent decision, refusing his release, had been marred by procedural unfairness.
The decision is important as it cites a number of key authorities in relation to procedural unfairness and how they apply to proceedings before the Parole Board.
Facts:
The Claimant is a prisoner subject to a determinate sentence. He was recalled to custody and his case was referred to the Parole Board who granted an oral hearing to consider his re-release. Shortly after this the Claimant was diagnosed with cancer. An application to expedite his oral hearing was granted and his oral hearing was listed for February 2020.
The judgment identifies a number of failings in relation to (i) the preparation of the hearing by the Parole Board (ii) the conduct of the hearing by the Panel Chair and (iii) the service of late reports after the hearing and (iv) the decision.
There were a number of failings to comply with the service of reports before the hearing, which meant that the Claimant’s solicitor was unable to take proper instructions until the morning of the hearing.
Upon arriving to the hearing, the Claimant’s solicitor was informed by the Panel Chair that she only had limited time to hear the case. This again compounded the difficulty with being served with a lengthy late report. Witnesses and the Claimant gave their evidence at some haste at the hearing, with the Panel Chair reminding the witnesses over their limited availability. After the hearing a key report was served, which should have been served well before the hearing took place.
The issue for the High Court was whether there had been procedural unfairness in the Claimant’s case.
Mr Justice Spencer held that “there were plainly serious failings in the preparation of the case for the oral hearing which resulted in real difficulty for the claimant and his solicitor on the day of the hearing. I am troubled by those failings and their impact on the fairness of the hearing”.
In summary he found that the following individual failings led to an unfair hearing:
- There was a failure to comply with directions to serve reports before the hearing.
- There was insufficient time before the hearing for the Claimant’s solicitor to take instructions on the late served reports.
- The Panel Chair had limited time to hear the case and this resulted in an unreasonable pressure of time which impacted the evidence received at the hearing.
- The limited amount of time available had a prejudicial effect on the Claimant giving evidence.
- The Claimant’s solicitor had been unable to challenge witnesses as extensively as she would have liked due to the time constraints. Materially this meant that the Claimant’s licence conditions were not able to be fully explored with the Claimant’s Offender Manager.
- The late service of a report after the oral hearing had concluded, meant that the Claimant’s solicitor did not have the opportunity to allay the Panel Chair, by way of oral submissions, of any concerns in relation to it.
After his Lordship identified several failings of procedural unfairness he concluded that but for the procedural unfairness, it was entirely possible that the outcome could have been different and the Claimant’s case was “a classic case of the need for justice not only to be done but to be seen to be done”.
As a result, the Parole Board’s decision was quashed and the High Court directed that an expedited re-hearing must take place by September 2020.
Commentary
This is an important judgment relating to how the Parole Board should conduct oral hearings fairly, and the need for the Parole Board to actively manage cases to ensure that directions are complied with. Prison law practitioners are all too often faced with lengthy reports being served on the day of a hearing with inadequate time to consider them or to take instructions. Procedural fairness therefore requires that the Board actively make sure that deadlines to serve reports are met, so that hearings can be effective.
Key to this case was the Panel Chair’s narrow availability to hear the case which meant the hearing was unduly rushed. Whilst most panels are willing to sit later in order to hear a prisoner’s case this was not done on this occasion. The result was that an expedited oral hearing, on the grounds of the Claimant’s own ill health, was unduly rushed. This prejudiced the ability of the Claimant to present his case fully through his solicitor.
Additionally, the judgment is critical of the inability to make oral submissions and to engage frankly with the Panel Chair on topics of concern to them. If crucial reports are not served until after a hearing, it is suggested that panels should be mindful of whether procedural fairness requires a further oral hearing, to allow a prisoner to present their case and allay the panel of any concerns. It is clear from this case that written submissions, which are commonly provided after hearings, will not always be suitable, especially where evidence has been provided after a hearing that remains untested.
Stuart Withers was instructed in this case by Alizeh Khan from Dobsons Law.
