Niall Whittaker, R (on the application of) v The Parole Board for England and Wales

HHJ EMMA KELLY:

1. Mr Niall Whittaker (‘the Claimant’) challenges the decision of the Parole Board for England and Wales (‘the Defendant’) dated 8 April 2025 to refuse the Claimant’s request for an oral hearing (‘the Decision’). The sole ground advanced by the Claimant is that the Decision is contrary to principles of procedural fairness and is therefore unlawful.

2. By order dated 13 August 2025, HHJ Worster granted permission to apply for judicial review.

3. The Defendant and Interested Party have remained neutral and have taken no active part in these proceedings. Background

4. The Claimant (DOB 13.09.93 and then aged 27) was sentenced on 23 December 2020 to a determinate custodial term of 5 years for two counts of robbery, one count of attempted robbery and one count of handling stolen goods. The sentence was to be served consecutively to an earlier sentence for robbery. His sentence expiry date is 8 December 2027.

5. On 29 February 2024 the Claimant was released on licence at his ‘Automatic Release Date’. Various conditions were attached to his licence.

6. On 3 May 2024 the Claimant was recalled to prison on a fixed term basis after he provided a positive drugs test for cocaine.

7. On 4 June 2024 the Claimant was released into the community on licence.

8. On 4 October 2024 the Claimant’s licence was again revoked following a series of positive drugs tests and missed appointments. There were no allegations that the Claimant had committed any further offences. The Claimant remained unlawfully at large until 9 January 2025, when he was arrested.

9. On 13 March 2025 the Defendant undertook a Member Case Assessment review on paper (“the Provisional Decision”). The Defendant had before it a 203-page recall dossier, which included a Part A Recall Report and OASys Assessment. The Claimant did not submit any representations to the Defendant. The Defendant made the Provisional Decision pursuant to rule 19(1) of The Parole Board Rules 2019 (“the 2019 Rules”) and noted: “The Panel gave consideration to the principles of Osborn, Booth & Reilly [2013] UKSC 61 . However, his risk factors are well understood and there did not appear to be anything in dispute that would need to be resolved at an oral hearing. Further, no reasons have been put forward for an oral hearing. In those circumstances, the Panel did not consider that there was any reason for an oral hearing.”

10. The Defendant concluded that no direction for release could be made and gave reasons which included the following: “4.3. The panel considered that given his history of non-compliance (in both recalls), there is a clear likelihood that he would breach his licence again if re-released. Given his previous convictions, this may well lead to serious harm being caused. 4.4. In those circumstances the panel considered that the risk of a further breach of his licence conditions leading to further offending, and of serious harm, was too high to be managed in the community.”

11. On 26 March 2025 the Claimant, acting by ABR Solicitors, made an application to the Defendant under rule 20(1) of the 2019 Rules for an oral hearing. The application included the following representations: “Mr Whittaker has not had the opportunity of making representations in relation to the Member Case Assessment process, due to delays in the issue of paperwork and prison transfers. His account in respect of his recall and his overall progress and insight in relation to his risk factors is of course crucial to this review. Additionally, there are some issues in dispute in relation to the current risk assessment and Mr Whittaker therefore has a legitimate interest in and expectation of responding to reports and questioning report writers, to assist with the review of his recall, the outcome of which will of course have a material impact on his liberty. Mr Whittaker disputes having targeted ‘vulnerable’ victims… Mr Whittaker is insightful in relation to his risk factors and therefore the current levels of risk need to be explored in more detail than is possible on the papers alone. In particular, it is noted that he has been twice recalled due to the provision of positive drug tests for cocaine. Mr Whittaker instructs that prior to release noted to his COM stated that this always went hand-in-hand with alcohol consumption. As such, he requested an additional licence condition of alcohol tagging, however, this was refused… Over the course of his sentence, Mr Whittaker has sought to engage with sentence planning targets but indicated that he did not receive any form of proper sentence planning documentation prior to his conditional release date… … The dossier notes that Mr Whittaker is “advised to have a diagnosis of ADHD”. It is not clear what this means. Mr Whittaker instructs that he had been referred for assessment in the community but this did not take place prior to recall. Since recall, mental health in which team have indicated that he does require an assessment for ADHD. He does feel that this is something that he struggles with and notes that he can be impulsive and very active, struggling to sit still. It is our submission and its outcome is of significant relevance to this review as it is clear that consequential thinking, thought slowing and impulsivity have been problems for Mr Whittaker. As such, gaining a clear picture of the reasons for this and the support/treatment available in this regard, will of course have an impact on risk reduction. This therefore needs to be explored further and the outcome of the assessment will be required to assist the oral hearing panel… In terms of the circumstances leading to recall, Mr Whittaker explains that there were occasions where he had difficulties attending appointments. However, he also instructs that this appointment dates and time would often be changed with very little notice and he would be expected to be able to get from work to the Probation office, often in rush hour, and this caused him difficulty. …his time in the community was meaningful and entirely pro-social. He was working as a roofer. This job is still available to him as it is through a friend. In addition, he was attending University and this is something that he wishes to re-start on release… … Neurodiversity is said in the OASys to not be applicable in this case, however, given the concerns in relation to ADHD, this is plainly an error so this needs to be explored further. … There are no suggestions of any further breaches and in particular there is no evidence of any further offending in the community, even when Mr Whittaker was unlawfully at large. He indicates that his IOM officer at confirm directly to him that there had been no police intelligence around him whilst he was in the community. …we therefore submit that an Oral Hearing is plainly required in this case. Mr Whittaker has developed significant insight in relation to his risk factors and the extent of this of course requires independent assessment by a panel of the Parole Board… There are also outstanding questions in relation to potential neuro diversity issues which may well impact on risk and appropriate identification and treatment of these will be relevant to the review of recall in our submission… An oral hearing is required in the interests of fairness to Mr Whittaker who has much to contribute to the decision making process. He is currently in a very positive position, engaging with all key workers and with further work in custody. The outcome of this will need to be assessed. There are no pending investigations or prosecutions and there is no suggestion that risk has increased within the Probation assessments.”

12. On 8 April 2025 the Defendant issued the Decision under rule 20(5) of the 2019 Rules refusing the application for an oral hearing. The reasons for the Decision were as follows: “… An oral hearing is no (sic) required in every case. The duty member concluded, on the basis of all the material in the dossier and the information provided, that there was no reason to believe that oral evidence would assist in resolving any disputes concerning facts, providing information that might mitigate the apparent level of risk presented, or would enable clarification of any points materially relevant to the assessment of risk, which are already clearly set out in the information supplied.”

13. The effect of the Decision was that, pursuant to rule 20(6) of the 2019 Rules, the Provisional Decision under rule 19(1)(b) became final. Legal Framework

14. In R (on the application of Browne) v The Parole Board of England and Wales [2018] EWCA Civ 2024 (“ Browne ”) Coulson LJ considered the correct test to be applied on a judicial review of a decision of the Parole Board: At [53]: “…I can see no basis for this court to depart from the conventional approach to the review of Parole Board decisions. The relatively high threshold of irrationality is appropriate when the Administrative Court is reviewing the decisions of the Parole Board”. At [54]: “Mr Rule argued that the common law has now adopted a different test for judicial review that goes beyond rationality in cases concerning fundamental rights. I do not agree. On the contrary, there is the highest authority for the proposition that the basic test to be applied in domestic judicial review cases which involve neither EU law nor Convention rights remains that of rationality. Again, the only modification is that, in cases involving fundamental rights, the reviewing court is required to consider the rationality of the original decision with “the most anxious scrutiny”.

15. The Supreme Court gave guidance as to the circumstances in which the Parole Board is required to hold an oral hearing in R (Osborn & Ors) v The Parole Board [2013] UKSC 61 (“ Osborn ”) . Lord Reed at [2] described those circumstances in the following way: “2. It may be helpful to summarise at the outset the conclusions which I have reached. i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) 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 in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a “paper” decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner's future management in prison or on future reviews. iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner's legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute. v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. ix) The board's decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner's release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner's treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. x) “Paper” decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not. xii) The common law duty to act fairly, as it applies in this context, is influenced by the requirements of article 5(4) as interpreted by the European Court of Human Rights. Compliance with the common law duty should result in compliance also with the requirements of article 5(4) in relation to procedural fairness. xiii) A breach of the requirements of procedural fairness under article 5(4) will not normally result in an award of damages under section 8 of the Human Rights Act unless the prisoner has suffered a consequent deprivation of liberty.”

16. The approach in Osborn has been applied in a number of cases in recent years. Those include R (Somers) v The Parole Board [2023] EWHC 1160 (Admin) (“ Somers ”) in which Foster J at [24] highlighted “the need to avoid a sense of injustice, derived from the lack of opportunity to contribute” and referred to Osborn at [77] where Lord Reed referred to “the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process…”

17. In R (Clarke) v The Parole Board [2025] EWHC 190 (Admin) (“ Clarke ”) Fordham J also emphasised the importance of what he described at [14] as ‘participatory-justice’ to ensure those affected by decisions can participate in the process by allowing them the opportunity to say something which is relevant to the decision.

18. When determining whether an oral hearing is appropriate, care needs to be taken not to focus on the likely outcome of a hearing. In Somers at [46] Foster J concluded, in the context of indeterminate post-tariff prisoners, that “the likelihood of a release is not relevant when assessing whether or not to hold an oral hearing”. In R (McKilligan) v The Parole Board [2024] EWHC 336 (Admin) (“ McKilligan ”) HHJ Belcher sitting as a Judge of the High Court was also troubled by the notion that the Parole Board had focused on the potential outcome of an oral hearing rather than whether an oral hearing was appropriate in another post-tariff case. At [37] she held: “… In my judgment this approach fails to identify the correct issue as identified in Osborn (per Lord Reed at [29(x)]. The claimant did not have to demonstrate that the paper decision, or even that it may have been wrong. The issue is whether an oral hearing was appropriate. By considering, indeed focusing on the potential outcome of an oral hearing, in my judgment the decision fails to specifically address the relevant issues set out in Osborn .” In Clarke , Fordham J at [12-14] also emphasised the need to avoid an “Outcome-Utility” approach to oral hearings that Osborn had rejected as unduly narrow. The Claimant’s case

19. Mr Buckley submitted that the claimant’s deprivation of liberty amounts to interference with a fundamental right and thus the Court is required to apply Browne and consider the challenge to the Decision with “the most anxious scrutiny”. He submitted that the circumstances adequately satisfy the elements of Osborn that warrant the granting of an oral hearing. He highlighted the following:

20. Per Osborn at [2(ii)(a)], there were important facts in dispute including the Claimant’s explanation for missed appointments, and the conflicting evidence within the recall dossier taken with the Claimant’s representations in his application surrounding the Claimant’s possible neurodiversity by way of ADHD and how that impacted on the assessment of risk and manageability of risk. Mr Buckley noted that the Decision (and the Provisional Decision) seemed to ignore the neurodivergence point entirely.

21. Per Osborn at [2(ii)(c)], an oral hearing was required in order that the Claimant and others such as the Claimant’s Community Offender Manager and Prison Offender Manager could be questioned to ensure the Claimant could put his case effectively, and to ensure Defendant was fully informed as to the level of risk and its manageability. Mr Buckley submitted this was of particular relevance given the importance of such evidence to risk and its manageability. This factor attracted greater importance given the Claimant was unable to participate in the initial stage of the review due to prison moves and the late provision of the recall dossier.

22. Per Osborn at [2(iv)], the refusal of an oral hearing interfered with the claimant’s clear legitimate interest in being able to participate in the decision in circumstances where he had something useful to contribute and had been deprived of his liberty. His participation in an oral hearing all the more important given he was prevented from submitting any representations in the initial stage of the review.

23. Mr Buckley further submitted that it is to be inferred from the reasons given for the Decision that the Defendant wrongfully adopted an ‘outcome focus’ when refusing the request for an oral hearing. He highlighted the reference in the reasons for the Decision to “there is no reason to believe that oral evidence would assist…” He argued that such an outcome focussed approach does what is not permitted by the Supreme Court in Osborn and developed in subsequent decisions such as Somers at [46], McKilligan at [37-38] and Clarke at [12] and [14]. Discussion

24. The Provisional Decision on 13 March 2025 was made in circumstances where the Claimant had not been able to make any representations to the Defendant. There is no evidence to counter the Claimant’s allegation that his lack of engagement at that early stage was attributable to matters outside his control, namely prison transfers and a delay in disclosing the recall dossier to him. The absence of his involvement in the initial stage had, in my judgment, two consequences. Firstly, it risked undermining the cogency of the Defendant’s decision-making as the Claimant was unable to assist them with the details of his case. Secondly, it risked disenfranchising the Claimant from his right to participate in the process. The Claimant’s application of 26 March 2025 therefore fell to be considered against the backdrop of the Claimant having not had the opportunity to make representations to date.

25. The Claimant’s application for an oral hearing identified a number of matters that were either in dispute or as to which there was limited, no or conflicting evidence within the recall dossier. This included: i) A dispute as to whether he had targeted ‘vulnerable’ victims in his offending, an assertion contrary to the conclusion of the Defendant at 1.1 of the Paper Decision and para. 2.4 of the OASys assessment. ii) An assertion that he had insight into his risk factors and a request that this be explored in more detail than was possible on the papers alone. The application identified that he had identified that his difficulties with cocaine went hand in hand with alcohol consumption but that his prior request for an additional licence condition of alcohol tagging had been refused. There is no evidence on the face of the recall dossier as to whether alcohol tagging had been explored and how, if imposed, that impacted on risk and its manageability. iii) An assertion that the Claimant had not been provided with any form of proper sentence planning documentation prior to his conditional release date. Whether this is correct is not clear from the recall dossier, nor, if correct what, if any, impact it had on risk or manageability. iv) A dispute as to whether the Claimant has ADHD and what effect, if any, that has on risk and its manageability. There was inconsistency on the face of the recall dossier itself. The Part A Recall Report of 4 October 2024 stated at section 10 that the Claimant “is advised to have ADHD diagnosis. Not currently medicated”. However, the OASys Assessment of the same date at section 4.8 stated “There is no current evidence that [the Claimant] has any neurodiversity needs or other cognitive needs that would require additional support” and at section 10.8 that “he is not currently diagnosed with any psychiatric conditions”. The Claimant’s application for an oral hearing identified that he was waiting for an appointment with the mental health team for support for anxiety management, and that he had previously been referred for an ADHD assessment in the community but that it did not take place prior to recall. The position as to whether the Claimant had ADHD and, if so, how that manifested on risk and manageability is thus unclear from the papers. The Provisional Decision did not pick up on the internal inconsistency within the recall dossier. Even when the Claimant’s application for an oral hearing highlighted the issue, the Decision itself is silent on the topic. v) An assertion that there were mitigating circumstances for him missing some probation appointments. There was no detail as to mitigation within the recall dossier. vi) An assertion that his time in the community was entirely pro-social and there was no police intelligence around him whilst on licence in the community. He asserted that his former roofing job was still available to him, he intended to re-commence university and had a positive and amicable relationship with the mother of his child.

26. By the Decision, the Defendant concluded that “there was no reason to believe that oral evidence would assist in resolving any disputes concerning facts…or would enable clarification of any points materially relevant to the assessment of risk…”. I find that conclusion extremely surprising in circumstances where matters such as his drug taking and any link to alcohol, possible ADHD, positive behaviours when in on licence in the community previously, and mitigating circumstances for previous missed appointments would (a) all appear to be relevant or potentially relevant to the assessment of risk and its manageability but (b) as to which there was insufficient, no or contradictory evidence on the papers alone. In refusing to countenance an oral hearing in such circumstances amounted to the Defendant failing to identify matters of potential importance which needed to be heard orally and underestimating, indeed dismissing entirely, the importance of the matters the Claimant raised: Osborn at [2(ii)(a)] applied.

27. Many of the issues raised by the Claimant were relevant to risk and its manageability, and required further investigation by the Defendant, such as the ADHD, the requested alcohol tagging, the asserted mitigation for missing appointments and pro-social behaviour. The only possible way to do that was through an oral hearing at which firstly, relevant persons, including the Claimant and relevant Offender Manager(s), could be questioned, and secondly, the Claimant or his representative could explain the position orally. I therefore accept Mr Buckley’s submission that these facts give rise to an Osborn [2(ii)(c)] situation in which an oral hearing is appropriate.

28. Further, as discussed in Osborn at [2iv] and [82], a prisoner has a legitimate interest in being able to participate in a release decision. The Claimant had not been able to make representations prior to the making of the Paper Decision for reasons that were not of his making. In my judgment, it behove the Defendant to take into account the fact that the Claimant had already been deprived of an opportunity to participate and, per Osborn at [83], that the claimant was a recalled prisoner who had been deprived of his freedom. I recognise that he was not serving a post-tariff indeterminate term but the decision to refuse an oral hearing nonetheless required careful scrutiny. The Decision is entirely silent as to any recognition that the Claimant had an interest in participating or that his ability to do so had been previously curtailed. In my judgment, the Decision fails to afford the claimant’s legitimate interest in participating any or any sufficient consideration, contrary to Osborn at [2(iv)], Somers at [24] and Clarke at [14].

29. Standing back, the inference arising from the Decision’s reasoning is that the Defendant concluded that an oral hearing would have made no difference to the outcome not to direct release. The narrative of the reasons concludes that there was no reason to believe that oral evidence would assist but there is scant detail to the basis for that conclusion save for a generic reference to it being based on “all of the material in the dossier and the information provided”. The reasoning fails to engage with any of the substance of the Claimant’s submissions in his written application for an oral hearing. The reader is left with the impression that the Defendant has concluded that an oral hearing will not make any difference to the outcome. It matters not that such a conclusion may be proved accurate but an outcome focussed approach is wholly contrary to Osborn at [2v] and [88], and Somers at [46], McKilligan at [37] and Clarke at [12] and [14]. Conclusion

30. For the reasons aforementioned, I therefore agree with the Claimant’s submission that the Decision to refuse an oral hearing amounted to reviewable procedural unfairness and was contrary to the approach required by Osborn . I propose therefore to quash the Decision and give suitable relief to ensure an oral hearing can now be convened in a timely manner. On the circulation of the draft version of this judgment, I invited the parties to consider a suitable form of wording for the order. The Claimant’s representatives have sought an order quashing the Decision and requiring the Defendant “to convene an Oral Hearing to review the Claimant’s detention, that hearing to be listed per the Defendant’s priority listing framework.” Neither the Defendant nor Interested Party have made any representations about the proposed form of order. I am satisfied that the proposed wording achieves the required result within a timescale the Defendant can comply with.