New legislation taking effect this month significantly changes the scope and nature of proceedings before the Parole Board. This article focuses on Rule 19(1ZA) of the Parole Board Rules 2019 (as amended) concerning oral hearings, and the Secretary of State for Justice’s new power to direct the Parole Board to refer a release decision in top-tier cases to the High Court.

Oral hearings for determinate recalled prisoners

On 16 December 2025 the Parole Board (Amendment) Rules 2025 came into force which make substantial amendments to the 2019 rules.

Of particular importance is the amendment to Rule 19, which has a new insertion in the form of Rule 19(1ZA). The rule restricts granting an oral hearing where the panel considers a case: (a) concerning the recall of a fixed term prisoner, (b) where a prisoner is under investigation for a new criminal offence or has been charged, or (c) where a prisoner has an automatic release date which is imminent. In these circumstances the case must not be directed to an oral hearing unless there are exceptional circumstances to justify one. There is no guidance yet from the Parole Board as to what amounts to exceptional circumstances.

The insertion of this rule represents a significant departure from well-established authority from the House of Lords in R(Smith and West) v Parole Board [2005] UKHL 1 and from the Supreme Court in R(Osborn and Booth) v Parole Board [2014] 1 AC 1115. Those decisions held that where there are important facts in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally then fairness would usually require an oral hearing before the Parole Board. Following Osborn and Booth, there are dozens of first instance authorities which demonstrate that the Parole Board has not consistently applied these well-established principles.

The change in Rule 19(1ZA) likely derives some support from the introduction of the fixed term recall scheme which came into effect in September 2025: the Criminal Justice Act 2003 (Suitability for Fixed Term Recall) Order 2025. The scheme allows for eligible prisoners to receive fixed term recalls for 14 days (for a sentence of less than 12 months) and 28 days (for a sentence of 12 months or more). Recalled prisoners serving a sentence of more than four years are excluded from the scheme. Additionally if the probation service chooses to apply for a standard recall, then the prisoner will be referred to the Parole Board for a decision as to their re-release.

The amendments to Rule 19 also occur in the context of the Parole Board losing two judicial reviews within the past year, where it failed to grant an oral hearing because of outstanding police investigations: R(AA) v Parole Board [2025] 997 EWHC (Admin) and R(Anditon) v Parole Board [2025] EWHC 2099 (Admin). Prior to this, it was common for single panel members to refuse an oral hearing due to an outstanding investigation. It remains to be seen whether the amendment to Rule 19 is lawful and compatible with common law procedural fairness as set out in Osborn.

The power to refer release decisions to the High Court

On 31 December 2025, s.32ZAA of the Crime (Sentences) Act 1997 and s.256AZBA of the Criminal Justice Act 2003 will come into force. From this date, when the Parole Board directs a top tier prisoner’s release (i.e. a prisoner serving a sentence for murder, rape, causing or allowing the death of a child or terrorism offences), the Secretary of State may direct the Board to refer the prisoner’s case to the High Court if it is considered that:

  • The release of the prisoner would likely undermine public confidence in the parole system, and
  • If the case were referred, the High Court might not be satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.

Once referred to the High Court it must either give effect to the Parole Board’s decision to release or make an order quashing the decision. The statutory power is supplemented by a new insertion of Rule 32 into the Parole Board Rules 2019 (as amended and not yet in force), recently published guidance from the Secretary of State for Justice, Part 77 of the Civil Procedure Rules, and a practice direction. The process of the referral to the High Court will be dealt with by the Part 8 procedure under the CPR.

In principle the power to refer top tier cases to the High Court represents a significant attack on the independence of the Parole Board and its status as a judicial body. It remains to be seen whether the legislation is compatible with Article 5(4) of the European Convention on Human Rights given the decision in Weeks v United Kingdom (1988) 10 EHRR 293. The European Court of Human Rights was clear that indeterminate sentenced prisoners are entitled to apply to a court which has the jurisdiction to speedily determine whether their detention is lawful. It has been subsequently accepted at the highest level domestically that Parole Board is therefore a court for the purposes of Article 5(4): see for example R (Wells) v Secretary of State for Justice [2010] 1 AC 553.

The introduction of the new power and the new Civil Procedural Rules has faced criticism. In September 2025, the Association of Prison Lawyers published a consultation response to the draft version of Part 77 and highlighted several concerns regarding the timing of referrals, the time in which to file an acknowledgment of service, the practicalities of prisoners effectively participating in hearings, unrepresented prisoners, disclosure, rights of audience, licence conditions, and judicial training.

The Civil Procedure Committee noted these concerns however it only made one substantive rule change which now requires that unrepresented prisoners are personally served with the Part 8 claim form (Rule 77.20). The Committee felt that the Civil Procedure Rules already contained sufficient rules to manage the referral process, and to deal with any potential issues of unfairness.

It is understood that once a case is referred to the High Court there will be a rehearing of the decision to release. How this will work in practice is currently unknown. It is expected that the High Court will exercise its case management powers to hold pre-hearing reviews to determine how cases will proceed on a case by case basis. Judges will receive specific training on parole matters, and it is understood that a select few judges will be able to hear these types of cases.

Of great practical and legal concern is the amount of time an indeterminate sentenced prisoner may now spend: (i) waiting for an oral hearing before the Parole Board, (ii) waiting for the Secretary of State to challenge the Parole Board’s decision, either by the reconsideration or by the set aside process, and (iii) then waiting for a potential referral to the High Court. This has the potential for significant knock on effects for indeterminate prisoners, especially those whose risk management plans are time sensitive. The current scheme at present will  likely not amount to a speedy review for the purposes of Article 5(4).

Stuart Withers is a public law barrister at No5 Chambers. He specialises in judicial review of parole proceedings.

You can contact him by email on swi@no5.com or his clerks on public@no5.com