Judgment was handed down on 9 May 2024 in the case of Neil Garmson v Parole Board for England and Wales [2024] EWHC 1106 (Admin) where Carl Buckley acted for the Claimant, finding that that Parole Board’s decision to conclude an oral hearing on the papers without hearing live evidence was unlawful.
The Claimant is subject to an IPP sentence, and at the time of the judgment, was over 8 years post-tariff. The challenge was brought on the basis that the Parole Board had failed to properly consider and apply the principles in Osborn, and more recently, Somers.
The decision in Garmson reiterates that it is in the fairness to the individual for the Parole Board to hold an oral hearing and to hear live evidence from the report authors. This is an important judgement to ensure fairness for all prisoners, and especially IPP and lifers, who are having their detention reviewed by the Parole Board.
It was challenged on behalf of the Claimant that the Parole Board’s decision to revoke the previous direction that the Claimant’s parole review was to be heard by way of Oral Hearing, and instead, conclude that review ‘on the papers’. It was submitted that in failing to hold the Oral Hearing as previously granted, that the Parole Board had adopted a process that was ‘procedurally unfair’ and further, that as a consequence, the Claimant’s rights per Article 5(4) of the European Convention on Human Rights have been violated.
His Honour Judge Cameron confirmed at paragraph 49:
“The court must determine for itself whether a fair procedure was followed (Osborn at paragraph 65). In approaching that task I place particular focus on the following factors:
i) The Claimant is a post tariff indeterminate sentence prisoner. In Somers (at paragraph 55) Foster J expressed the view that the reasoning in Osborn (at paragraphs 2(vi) and 112) which adverts to the position of a ‘post-tariff lifer’ is tantamount to raising a presumption in favour of an oral hearing.
ii) The purpose of holding an oral hearing is not only to assist in decision-making, but also to reflect a prisoner’s legitimate interest in being able to participate in the decision. (Osborn 2(iv)).
iii) An oral hearing should be allowed 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 to enable him or his representative to put his case effectively, or to test the views of those who have dealt with him (Osborn at paragraph 82). In making representations the Claimant stated that he wished to challenge the assessment of risk contained in the reports which were before the Defendant, and that it would be unfair to him to permit such evidence (including from the Community Offender Manager) to be presented without giving him the opportunity to challenge it. In representations made on behalf of the Claimant, it was also said that he wished to ‘detail’ how he has reduced risk.
iv) The question of whether fairness required the Claimant to be given an oral hearing is different from the question of whether he had a particular likelihood of being released
or transferred to open conditions (Osborn at paragraphs 2(v) and 88, Somers at paragraph 46, McKilligan at paragraph 37).”
As a result, Mr Buckley succeeded in securing that the Parole Board’s decision was quashed and an oral hearing before the Parole Board was directed.
Carl Buckley was instructed by Malcolm Tebb, who has been the prison law supervisor since 2015 at Kesar and Co Solicitors.