Will your voice now be heard

19/03/2014

Prisoners will be aware that in the main all Parole and Recall reviews will, in the first instance, be considered on the papers with no guarantee that a review will proceed to an oral hearing.

Parole Reviews would only progress a review forward to an oral hearing when certain criteria had been met. However, following the Supreme Court decision in the case of Osborn, Booth and Reilly there has been a significant change in when cases are progressed forward to an Oral Hearing. Many will be interested to note that this landmark case described the Parole Board’s previous guidance as to when to progress matters to an oral hearing as ‘thoroughly illogical… demonstrating an institutional reluctance to grant oral hearings.”

What has changed and why?
The case of Osborn, Booth and Reilly was concluded on 9 October 2013 and transformed the law surrounding a prisoner’s right to an oral hearing. The Supreme Court heard appeals of prisoners Osborn, Booth and Reilly and following which, provided clear guidance as to when a prisoner should have their case progressed to an oral hearing before a panel of the Parole Board.

The three appellants in this case had all been refused oral hearings. Booth and Reilly were both post-tariff indeterminate sentence prisoners. Mr Osborn was a recalled determinate sentenced prisoner. The Parole Board had decided in all of their cases to conclude their Parole and Recall reviews on the papers and not progress matters to an oral hearing on the basis that the they did not think an oral hearing would assist or affect their decision making process. However, such a reason is no longer enough for an oral hearing to be refused.

Will I now have my case sent to an oral hearing?
Lord Reed, in making his judgement, stated that the purpose of an oral hearing was not only to assist the decision maker, but 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.’ This viewpoint will ring true with many prisoners who may feel frustrated at their inability to contribute personally to the decision making process in their parole or recall matter.

The Supreme Court has recognised the importance of this and within the decision acknowledged that prisoners, whose lives are so significantly affected by the decisions of the Parole Board, should be allowed involvement in the decision making process. Lord Reed conceded that ‘feelings of resentment will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result’, later noting the ‘frustration, anger and despair felt by prisoners who perceive the Board’s procedures as unfair’ and acknowledging ‘the impact of those feelings upon their motivation and respect for authority’.

It will be of great relief to those subject to the Parole and Recall process to hear that the Parole Board is now required to follow the principles laid down in the case of Osborn Booth and Reilly and as such cases will now be more readily referred to be considered at an oral hearing.

Why would I want my case to go to an oral hearing?
It is so often the case that prisoners feel that having their case heard before the Board could have a real impact upon the decision and want to have the chance to give evidence in person. Previously the Parole Board had often not felt that this was of importance and used different criteria to determine whether a case should progress to a hearing.

It is of real significance that Lord Reed in his judgment stated that he found “…oral hearings particularly rewarding in that the evidence on the day can sometimes illuminate a situation sufficiently to turn around my preliminary view of the case. There is no substitute for being able to hear from, and ask questions of the prisoner.’

From experience prisoners can often provide much greater insight into their risk factors by speaking to panel members of the Parole Board about the offending work they have undertaken and how they have changed since the index offence. Sometimes this evidence can sway the panel to make a decision in favour of the prisoner, particularly when there are contradictory recommendations by those supervising the prisoner or when there is a dispute in the assessment of the level of risk. It may also be the case that a much fairer and objective decision letter will be issued by the Parole Board which will undoubtedly be helpful for Parole cases when the Secretary of State is responsible for determining the time table for the next review and what work should be addressed in that time.

So in what cases will an oral hearing now be listed?
The decision in this case provided a helpful summary of when an oral hearing will be now required, with the following specifically being referred to:-

1. When a substantial term of imprisonment may be at stake and characteristics pertaining to the personality and level of maturity of the prisoner are important in deciding on the prisoner’s level of risk, then the case should be heard at an oral hearing.

2. It was made clear that an oral hearing is essential where the prisoners’ nature and characteristics are linked to an assessment of the level of risk.

3. For indeterminate prisoners who are considerably past their tariff expiry date it has been said that they should have an opportunity to appear in person before the parole board in order to maintain the principle of fairness.

More generally, it was concluded that a prisoner should be able to challenge any issues that they may disagree with in the provisional decision of the Parole Board at an oral hearing. For example, if a prisoner wishes to dispute documented negative behavioural reports or offending behaviour work recommendations then an oral hearing should be allowed, ‘even if there is no doubt that the prisoner should remain in custody or in closed conditions.’

Similarly, the decision states that the board has a duty to proceed to an oral hearing where there is a dispute which may affect the outcome of the case, ‘where the 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.’

These points can be raised in written representations to the Parole Board, which should advisably be drafted by a Prison Law Specialist.

What will the consequence of this case be?
The outcome of this case provides that most post-tariff parole prisoners should now have their cases progressed to an oral hearing. Furthermore, recalled prisoners are more likely to have their cases proceed to a hearing before the Parole Board, rather than simply being concluded on the papers. The result of this however will be the significant increase in the amount of hearings the Parole Board will have to deal with.

Some of those already subject to the Parole process will have received a letter from the Parole Board setting out there may now be some delays in receiving a hearing date. The Parole Board rules have also been changed to allow Lifer Parole Boards to be chaired by non judicial members, to undoubtedly enable the increase in these cases being spread more evenly between the Parole Board members and elevate any further delays.

Quite clearly the Parole Board are going to have to adapt further to insure that prisoner’s cases are dealt with fairly and swiftly. Now that this new criteria has been laid down, the Board is going to have to adapt in light of the significantly increased likelihood of prisoners being granted an oral hearing. The current resources and organisational structure of the Parole Board simply will not cope with this increase and immediate changes will have to be made.

Whilst the implications of Osborn, Booth and Reilly are highly positive in terms of fairness for prisoners and increased access to oral hearings, the Parole Board are going to have to demonstrate proactivity and reorganisation in order to meet the new and increased demands imposed upon them.

Those subject to the Parole or Recall process ought to consider contacting a Prison Law Specialist in order that they are able to advise on the implications of this case and what the process holds of them. We hope that from reading this article inmates will have a better understanding of the procedure and encourages them to speak to a solicitor at the earliest opportunity, and even before a Parole process has started.

As published in Inside Time Magazine

http://www.insidetime.org/articleview.asp?a=1718&c=will_your_voice_now_be_heard

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