Case No: CO/8865/2009
Neutral Citation Number: [2010] EWHC 1780 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 16 July 2010

Before:
LORD JUSTICE HOOPER
MR JUSTICE KEITH
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Between:

	Gerald Roose	Claimant	
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	(1) The Parole Board
(2) The Secretary of State for Justice	
Defendants	

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Ms Flo Krause (instructed by Cartwright King) for the Claimant
Ms Samantha Leek (instructed by The Treasury Solicitor) for the First Defendant
Ms Shaheed Fatima (instructed by The Treasury Solicitor) for the Second Defendant

Hearing date: 2 July 2010
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Judgment
Mr Justice Keith (giving the first judgment at the invitation of Lord Justice Hooper):
Introduction
1.	Prisoners serving sentences of life imprisonment are called lifers.   Their release depends on when their minimum term expires and when the Parole Board concludes that it is no longer necessary for the protection of the public that they should be confined.   The Parole Board regularly reviews the cases of lifers, as well as prisoners serving other forms of indeterminate sentences.   It is relatively unusual for the Parole Board to direct the release of a lifer on the expiration of his or her minimum term, but even with that in mind, the time which the claimant, Gerald Roose, has been in prison is very concerning.   He was sentenced to life imprisonment in 1985 for an offence of causing grievous bodily harm with intent.   His minimum term was seven years.   It expired in 1992, and yet 18 years later he is still in prison.   This claim for judicial review concerns the last time the Parole Board looked into his case.   An unfortunate combination of events – which included an unexpected suggestion about how he should be managed in prison in the future and a change in the law at the very time the Parole Board was considering his case – played their part in the outcome of the last review which resulted in devastating disappointment for Mr Roose.   
The background facts
2.	Mr Roose is now 54 years old.   In 1975, he was sentenced to seven years’ imprisonment for the attempted murder of his mother.   He had lifted up her jumper and bra, pulled down her trousers and knickers, fondled her breasts, stabbed her in the chest and tried to strangle her with a tie.   In 1981, he was sentenced to six months’ imprisonment for stabbing a hospital nurse in the stomach with a pair of scissors.   The sentence of life imprisonment which Mr Roose is currently serving relates to an occasion when he persuaded a woman who was temporarily staying at the rest home where Mr Roose was living to go for a walk with him.   He made a pass at her, which she did not reciprocate.   He felt angry and rejected, and could not face returning to the rest home for fear of the shame and ridicule he thought he would face.   He therefore decided to “get rid of the problem”.   He pushed her to the ground, jumped on top of her, put something sharp to her cheek, hit her on the head, threatened to rape and kill her and pulled a rope tight around her head.   When she lost consciousness, he left her for dead.   He is said to have indecently assaulted her as well, but he has always denied that.   
3.	The Board considered Mr Roose’s case a number of times before and after his minimum term expired in 1992.   For present purposes, what needs to be said about the previous occasions when his detention was reviewed is that on his seventh review in September 2004, the Board recommended that he be transferred to open conditions.   The Secretary of State declined to accept that recommendation.   He needed Mr Roose to demonstrate that the risks he posed could be reduced.   By the time of Mr Roose’s eighth review in October 2007, it had become clear that a transfer to hospital under the Mental Health Act which the Secretary of State had thought could be appropriate would not be happening, because although Mr Roose had a personality disorder, he did not suffer from mental illness.   The Board noted that in addition to the considerable weight of reports before the Board in September 2004 supporting Mr Roose’s transfer to open conditions, three further reports supported that as well.   Only the seconded probation officer expressed doubts about that, having previously supported Mr Roose’s transfer to open conditions.   However, following an oral hearing, the Board decided not to recommend Mr Roose’s transfer to open conditions, even though none of the reports on Mr Roose had suggested that there was any further progress which Mr Roose could make in closed conditions.   The Board was influenced in particular by concerning sexual fantasies which Mr Roose still had and by his unwillingness to undertake any accredited sex offending programmes.   
4.	By the time of Mr Roose’s last review by a panel consisting of a single member of the Board in March 2009, he had been a category C prisoner for 12 years.   The dossier on him which the single member was provided with contained documents setting out Mr Roose’s offending and the history of his previous reviews, together with a number of new documents which specifically addressed the level of the risk he was then posing to members of the public.   The four relevant ones were as follows:
(i)	An OASys assessment carried out in October 2008 concluded that Mr Roose posed a medium risk of serious harm to members of the public.   That meant that Mr Roose had “the potential to cause serious harm, but was unlikely to do so unless there was ‘a change in [his] circumstances’”.   
(ii)	A consultant clinical and forensic psychologist, Joanna Brook-Tanker,  interviewed Mr Roose for three hours in October 2008 in order to provide a SARN (Structured Assessment of Risk and Need) report on him.   That was what the Board in October 2007 had asked to be prepared for his next review.   Unfortunately, Ms Brook-Tanker had not had an opportunity to read the six volumes of notes on Mr Roose before she interviewed him, and she had only “explore[d] briefly some of the reports contained in the most recent volume”.   She herself said that in those circumstances any opinion and recommendation she expressed had to be considered as tentative.   She was concerned that Mr Roose did not appear to have developed adequate insight into his offending behaviour.   She was very concerned about the prospect of him moving to open conditions.   She thought that the Board may wish to consider whether Mr Roose should be assessed for his suitability for treatment under the Dangerous and Severe Personality Disorder programme, which is for offenders deemed more likely than not to commit offences in the future which could cause serious harm from which their victim would find it difficult or impossible to recover.   This was the first time that such a possibility had ever been canvassed, though it was not as if Ms Brook-Tanker was saying that Mr Roose was eligible, let alone suitable, for the programme.   She was simply saying that it was possible that he fulfilled the criteria for the programme because he had been diagnosed as having a personality disorder in the past.   
(iii)	Jon Denning, the offender supervisor at the prison where Mr Roose was held, provided a report on him in November 2008.   We were told that he was the officer who had supported Mr Roose’s transfer to open conditions in September 2004, but who had begun to express doubts about that in October 2007.   This time he expressed the view that “[t]o move him from [his present] environment … [would] raise his risk of serious harm and highlight his identifiable risk factors”.   He noted that “when taken out of familiar surroundings or faced with unknown people Mr Roose has an inability to manage his emotional responses in an appropriate manner, thus increasing the risk of serious harm that he poses”.   Finally, he added: “His apparent infatuation with older ladies … highlights risk factors which are intrinsically linked to the index offence and previous behaviour.”   He concluded his report by saying that he would not support Mr Roose’s transfer to open conditions, and said that he agreed with Ms Brook-Tanker that Mr Roose would benefit from a move to the Dangerous and Severe Personality Disorder Unit.   He was unaware or had overlooked that any view which she had expressed was tentative, and he was apparently under the impression that she had actually recommended such a move.   
(iv)	A senior probation officer also interviewed Mr Roose and prepared a report on him.   Her report endorsed the recommendation that he be considered for transfer to the Dangerous and Severe Personality Disorder programme, and she was likewise not prepared to support a move to open conditions at that stage.   However, her report was based on a conversation she had with Mr Roose on the telephone for only an hour, and I rather doubt whether the Board would have attached any weight to it.   
The dossier containing these reports was sent to Mr Roose’s solicitors (since they were on the record as continuing to represent him) and to Mr Roose.   They were invited to make such representations as they wished, but none were received.   
5.	The single member’s written decision that Mr Roose was not suitable either for release or for transfer to open conditions is dated 18 March 2009.   It is important to remember that there is no direct challenge to that decision, but the reasons for the decision are relevant because of the impact it has on whether fairness to Mr Roose required that his case be considered at an oral hearing.   The single member said that “there was currently no merit in an oral hearing being held as the consensus of all report writers is that Mr Roose is not suitable for a move to open conditions or release into the community”.   There was “insufficient evidence that his risk of violent re-offending has reduced in any way”.   It was noted that there was “currently no risk management plan in place for his management within the community”.   The single member thought that it had actually been recommended that he be assessed for his suitability for the Dangerous and Severe Personality Disorder programme.   He hoped that Mr Roose would comply with those assessments “as this has been identified as the most appropriate way forward for Mr Roose to address his offending behaviour and in time reduce his risk of re-offending and of harm to the public”.   One of the reasons why the single member concluded that there was no “current benefit” in an oral hearing being convened was that this would take “some considerable time”.   
6.	This decision was sent to Mr Roose.   On 3 April 2009, he requested an oral hearing, giving three reasons for doing so: an up-to-date OASys assessment would have to be carried out, he could be legally represented and the panel could question him.   Since it was the Board’s response to that request which is the decision of the Board challenged on this claim for judicial review, I quote from the relevant part of the decision letter (which is dated 12 May 2009 and is headed “Appeal Against Paper Decision”) in full:
“You appealed the negative decision on the basis that you hoped that an updated OASys might indicate a reduction in your risk and that if your case went to an oral hearing you would have access to legal representation.   You have produced no evidence that might indicate that your risk had reduced.   No report writer shares that view.   Indeed you have been recommended for an assessment for a DSPD unit to address outstanding risk issues.   Current reports suggest that you should comply with any recommendations for further assessment to address your offending behaviour and thereby reduce your risk of re-offending and of harm to the public.”
It is questionable whether this is the decision which Mr Roose should be challenging, bearing in mind that it was treating Mr Roose’s request for an oral hearing as if it was an appeal on the merits of Mr Roose’s release or transfer to open conditions, rather than addressing simply the question of whether his release or transfer to open conditions should be considered at an oral hearing.   It was the earlier decision of 18 March 2003 which had done that.   That is not simply a technical point because the claim form was filed in the Administrative Court Office on 11 August 2009, and the claim would have been out of time if the real decision being challenged was the one of 18 March 2009, rather than the one of 12 May 2009.   However, since the decision of 12 May 2009 was the Board’s response to Mr Roose’s request for an oral hearing, I would be prepared to treat the decision of 12 May 2009 as refusing that request, even though the Board treated the request as if it was an appeal on the merits.   
The legal framework
7.	The relevant statutory provisions are sections 28(5) and 28(6) of the Crime (Sentences) Act 1997, which provide that the Board can direct the release of a lifer where it is satisfied that “it is no longer necessary for the protection of the public that the prisoner should be confined”.   In considering whether to give such a direction, the Board is bound by the Parole Board Rules 2004 (“the Rules”) made by the Secretary of State for Justice pursuant to section 239(5) of the Criminal Justice Act 2003.   The Rules were amended by the Parole Board (Amendment) Rules 2009 (“the Amendment Rules”) with effect from 1 April 2009, and the relevant rules for present purposes are rules 11 and 12 (which were amended by rules 9 and 10 of the Amendment Rules respectively).   Rule 11 is headed “Consideration by single member panel”.   It provides, so far as is material, and tracked to show the amendments to it, as follows:
“(1)	Within 14 weeks of the case being listed, a single member panel shall consider the prisoner’s case without a hearing.   
(2)	A single member panel must either
(a)	decide that the case should be considered by a three member oral panel receive further consideration by an oral panel; or
(b)	make a provisional decision as to that the prisoners is unsuitable suitability for release.”
The decision of 18 March 2009 was the provisional decision of the single member of the Board that Mr Roose was unsuitable for release, even though the letter did not say that the decision was a provisional one.   
8.	Rule 12 is headed “Provisional decision against release”.   It provides, tracked to show the amendments to it, as follows:
“(1)	In any case where the single member panel has made a provisional decision under rule 11(2)(b) that the prisoner is unsuitable for release, the prisoner may require a three member request an oral panel to give consideration to his case with a hearing.
(2)	Where the prisoner does so require request consideration of his case with a hearing, he must serve notice to that effect giving full reasons for the request on the Board and the Secretary of State within 19 weeks of the case being listed.
(3)	If no notice has been served in accordance with paragraph (2) after the expiry of the period permitted by that paragraph, the provisional decision shall become final and shall be provided to the parties within 20 weeks of the case being listed.”
Although the Board’s decision letter of 12 May 2009 referred to Mr Roose’s request for an oral hearing as an appeal against the decision of 18 March 2009, the letter of 12 May 2009 was the Board’s response to Mr Roose’s request.   The Rules do not provide for an appeal.   
9.	It is apparent that prior to the amendments effected by the Amendment Rules, a prisoner could require the Board to convene an oral hearing before three members of the Board to consider whether he should be released if a provisional decision had been made that he was unsuitable for release.   Such a hearing had to be convened.   That was the position when Mr Roose’s solicitors were sent the dossier some time prior to 1 April 2009.   They thought – correctly in the light of the Rules at the time – that if a provisional decision was made that Mr Roose was unsuitable for release, they could then require the Board to convene an oral hearing.   The effect of the amendments made by the Amendment Rules was that the prisoner could only request the Board to convene an oral hearing, and it was for the Board to decide whether one should be convened.   It looks as if the change was a response to the concern expressed in many quarters about the time which the process was taking, and as a result prisoners – some of whom might have had a good case for their release on licence – were having to wait far too long for the question of their release to be decided.   
10.	The Rules are silent about how such requests are to be decided and by whom, but in August 2009, i.e. well after the decisions made in this case, the Board issued a statement which set out its policy on the topic.   The policy was in these terms:
“Decisions on oral hearings will be taken by the ICM member.   The member will consider this in all cases, regardless of whether the prisoner has requested one.   An oral hearing will normally be granted in two sets of circumstances:
1.	Where the ICM member considers there is a realistic prospect of release or a move to open conditions; or
2.	In any case where the assessment of risk requires live evidence from the prisoner and/or witnesses.   This would include a case where a progressive move is not a realistic outcome, but where live evidence is needed to determine the risk factors.   It is envisaged that this will be a rare step to take and would normally only be necessary where experts disagreed about a risk factor; for example, whether or not there was a sexual element to an offence that needed exploring.   It is only intended to apply this principle where there is a dispute about whether an issue is a risk factor at all, not necessarily whether it has been addressed or not.
An oral hearing will not be granted where there is no realistic prospect of release or open conditions, but where such outcomes are requested by the prisoner, detailed reasons will be given for refusing, in particular where the prisoner is already in category C or D.   
Decisions will normally be taken at the ICM stage.   In a case where a negative decision has been issued, the prisoner has the right to apply for an oral hearing.   These requests will be considered by the duty ICM member.   The member who gave a negative decision will not consider the oral hearing request.”
ICM stands for Intensive Case Management, and refers to a member of the Board who has been accredited by the Board to manage cases in accordance with the Board’s intensive case management system, which seeks to ensure that all relevant information about a prisoner is available to the Board at the earliest stage and is both accurate and up-to-date.   
The compatibility of rule 10 of the Amendment Rules with the Convention
11.	Art. 5(4) of the Convention provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The case which Mr Roose’s legal team wishes to advance is that rule 10 of the Amendment Rules, which removed the lifer’s entitlement to require the Board to convene an oral hearing when it was considering his or her release on licence, and left it to the Board to decide whether an oral hearing should be convened, is incompatible with Art. 5(4).   It is said that the decision of the European Court of Human Rights in Waite v The United Kingdom (2003) 36 EHRR 54 supports that contention.   Permission to proceed with this part of the claim was refused by Sales J, and Mr Roose’s solicitors have asked for that to be reconsidered at a hearing.   
12.	Waite is not on all fours with the present case.   In Waite, the lifer had already been released on licence, but he was recalled to prison for breaking its terms.   One of the issues was whether Art. 5(4) required the Board, when considering whether to recommend the revocation of his licence, to convene an oral hearing.   At [59], the court said:
“In matters of such crucial importance as the deprivation of liberty and where questions arise involving, for example, an assessment of the applicant’s character or mental state, the Court’s case law indicates that it may be essential to the fairness of the proceedings that the applicant be present at an oral hearing.   In such a case as the present, where characteristics pertaining to the applicant’s personality and level of maturity and reliability are of importance in deciding on his dangerousness, Art. 5(4) requires an oral hearing in the context of an adversarial procedure involving legal representation and the possibility of calling and questioning witnesses.”  (Emphasis supplied)
Different considerations may arise where the Board is deciding whether a prisoner’s licence should be revoked for breach of its terms and when it is deciding whether a lifer’s level of risk is such that he can safely be released into the community.   But for my part I do not read the court in Waite as adopting the absolutist position that in every case where the prisoner’s release or continued detention is ultimately going to depend on what the Board decides, Art. 5(4) requires an oral hearing to be convened.   It is going to depend on the issues which are to be addressed.   The level of the prisoner’s maturity and reliability are the sort of issues which the court in Waite said would require an oral hearing to be convened, presumably because they are issues which can only be properly and fairly resolved by an oral hearing, whether for relevant witnesses to be questioned or for oral representations by lawyers to be made.   
13.	The domestic authorities have likewise rejected the proposition that Art. 5(4) mandates an oral hearing whenever the Board is considering a prisoner’s release or continued detention.   Two authorities demonstrate that.   The first is R (on the application of O’Connell) v The Parole Board [2008] 1 WLR 979.   In that case, the Board had decided not to recommend the release of a prisoner who had been given an extended sentence and had completed one-half of the custodial term.   It had come to that decision without an oral hearing.   It was contended on behalf of the prisoner that where the risk which the prisoner posed had to be evaluated, Convention jurisprudence had consistently held that an oral hearing was a necessary part of the protection required by Art. 5(4).   The principal issue was whether Art. 5(4) was engaged when the Board was considering the release of a prisoner who was still serving the sentence which the court had imposed (which was very different from a prisoner serving an indeterminate sentence who had already served his minimum term).   The Divisional Court said that Art. 5(4) was engaged, but the Court of Appeal disagreed.   However, on the question of what Art. 5(4) would have required, Latham LJ (with whose judgment Simon J agreed) referred to four of the authorities which had been cited, including a passage from Hussein v The United Kingdom (1996) 22 EHRR 1, which the passage in Waite I have already cited reproduced almost word for word.   Latham LJ then said at [21]:
“In so far as the submission is to the effect that Art. 5(4) requires an oral hearing in every case where the question is the assessment of risk to the public, I reject it.   In the first three cases referred to in the previous paragraph, the court was not dealing with the particular facts of each individual case.   It was identifying the characteristics of a hearing which was capable of being Art. 5(4) compliant.   I do not read the judgments as dealing with the question of whether in every case without exception there must be an oral hearing.   The principle is accurately set out in paragraph 59 of Hussein.   The question of whether or not an oral hearing will be necessary in any given case will depend upon the facts.   I consider that the position in this respect under Art. 5(4) is no different from the position at common law.” (Emphasis supplied)
14.	The reference to “the position at common law” was a reference to the requirements of procedural fairness, and in (1) West and (2) Smith v The Parole Board [2005] 1 WLR 305, the House of Lords in effect held that the requirements of procedural fairness and the protection afforded by Art. 5(4) when it comes to decisions of the Board were synonymous.   West and Smith were cases in which the Board had decided not to recommend the release of prisoners who had been released on licence after serving one-half or two-thirds of their determinate sentences, but who had been recalled to prison after breaking the terms of their licence.   The Board had come to its decisions without an oral hearing.   At [37], Lord Bingham referred to the function of the Board in those cases as having been to examine whether circumstances had arisen sufficient in law to “justify the further detention of persons sentenced to a determinate term of imprisonment who had been released on licence, and if so to decide whether the protection of the public called for the further detention of the prisoner”.   He said that the Board’s review of those issues would “satisfy the requirements of Art. 5(4) provided it is conducted in a manner that meets the requirements of procedural fairness already discussed”.   For the reasons which I shall come to in due course, I do not think that the requirements of procedural fairness require an oral hearing in every case in which the Board is considering a lifer’s release or continued detention.   
15.	Ms Flo Krause for Mr Roose relied heavily on a recent decision of the High Court of Northern Ireland – Reilly’s (James Clyde) Application [2010] NIQB 46.   The prisoner was, like Mr Roose, a discretionary life prisoner, who had requested, but had been refused, an oral hearing following a provisional decision by a single member that the prisoner was unsuitable for release.   Treacy J noted that the English authorities did not support the argument that Art. 5(4) required an oral hearing, if requested by the lifer, irrespective of the merits of prospects of release.   However, he thought that there was a material difference between what Art. 5(4) and procedural fairness at common law required in the case of prisoners serving determinate sentences and lifers.   The latter could potentially remain in prison for the rest of their lives if they were thought to continue to pose a risk to the public.   The nature of what was at stake in such a case called for the highest standards of procedural fairness.   Having cited the passages in Hussein and Waite to which I have referred, Treacy J said at [35]:
“In the determinate sentence/Parole Board context an oral hearing is often likely to be required because many such hearings will involve ‘matters of [such] crucial importance as the deprivation of liberty’ where ‘a substantial term of imprisonment may be at stake’.   Moreover the decisions will frequently require consideration of:
(i)	the prisoner’s ‘mental state’;
(ii)	his character;
(iii)	his personality; and
(iv)	his maturity.
Where the above conditions are satisfied Art. 5(4) may require an oral hearing.   The considerations adumbrated above are likely to embrace many (perhaps most) Parole Board hearings.”  (Emphasis supplied)
Treacy J went on to conclude that both Art. 5(4) and procedural fairness required an oral hearing in the circumstances of that case.
16.	It is plain that Treacy J was not saying that Art. 5(4) required an oral hearing in every case in which a lifer is seeking his release on licence.   He said that the considerations he had identified were “likely to embrace many (perhaps most) Parole Board hearings”, but significantly not all oral hearings.   Although his judgment is useful in identifying the factors which may require an oral hearing, the case is simply an illustration of the proposition that the question whether an oral hearing should be convened in any particular case will depend on its own facts.
17.	Ms Krause has argued that the effect of the amendment to rule 12 of the Rules is that it is for the prisoner to justify the need for an oral hearing.   I do not agree.   The prisoner has to request one, but the fact that he has to give his reasons for his request does not mean that he is having to justify his request.   Reasons are useful so that the Board can take them into account when coming to its decision, but there is no hurdle which the prisoner has to overcome.   It is for the Board to decide in every case whether an oral hearing is required to enable it to make a truly informed decision in the light of the issues which it has to address.   
18.	When refusing permission for this part of the claim to proceed, Sales J said:
“Art. 5(4) does not in terms require an oral hearing; it creates an implied obligation to hold an oral hearing only where that would serve a useful purpose in allowing proper exploration of a claimant’s case.   Whether that is so or not will depend on the particular facts of individual cases.   The amended rules leaves it to the judgment of the Parole Board to assess that in each case.   There is nothing in the rule which prevents the Parole Board from acting to ensure full compliance with Art. 5(4) rights.   Structuring the decision-making process in this way is clearly compatible with Art. 5(4).”
I agree with these remarks, and I would dismiss the renewed application for permission to proceed with the part of the claim which alleges that rule 12 of the Rules as amended is incompatible with Art. 5(4).   
The requirements of procedural fairness
19.	I turn to the ground which Sales J permitted to go forward to a full hearing.   That ground challenges the Board’s decision not to convene an oral hearing on the basis that the circumstances of Mr Roose’s case were such that procedural fairness (as well as Art. 5(4)) required an oral hearing in his case.   It is important to remember that it is for the court to decide what procedural fairness requires.   It is not appropriate for the court to ask whether it was reasonably open to the Board to conclude that procedural fairness did not require an oral hearing.   That was accepted by the Board.   In considering what procedural fairness requires, the court should give some, though not undue, weight to the decision of a specialist body such as the Board.   But that needs to be approached with some care.   In (1) West and (2) Smith, Lord Hope spoke at [66] of the “long-standing institutional reluctance on the part of the Parole Board to deal with cases orally”.   It follows that any deference which is given to the Board’s view whether procedural fairness in a particular case requires an oral hearing has to be informed by that important consideration.   Having said that, since the court is having to decide for itself what procedural fairness requires in any given case, it is – in theory at least – not limited to the documents or information which were before the Board.   But it is important that prisoners and their representatives realise that they should always provide the Board with the documents or information which they want the Board to consider.   It will only be in an exceptional case that the court will think it appropriate to decide whether procedural fairness required an oral hearing on the basis of documents and information which the prisoner or his representatives could have put before the Board but did not do so.   
20.	In (1) West and (2) Smith, the House of Lords considered, amongst other things, what the common law required in terms of procedural fairness when it came to decisions of the Board relating to the release of recalled prisoners.   Lord Hope limited his consideration of the issue to what the Board’s approach should be when factual issues have to be resolved.   He said at [67]-[68] that “an oral hearing should be the norm rather than the exception” when, on a perusal of the papers, it is thought that the case is likely to turn on disputed issues of fact.   Lord Slynn said at [50]:
“There is no absolute rule that there must be an oral hearing automatically in every case.   Where, however, there are issues of fact, or where explanations are put forward to justify actions said to be a breach of licence conditions, or where the officer’s assessment needs further probing, fairness may well require that there should be an oral hearing.   If there is doubt as to whether the matter can fairly be dealt with on paper then in my view the Board should be predisposed in favour of an oral hearing.”
But the fullest statement on the appropriate principle came in the speech of Lord Bingham.   He said at [35]:
“The common law duty of procedural fairness does not, in my opinion, require the Board to hold an oral hearing in every case where a determinate sentence prisoner resists recall, if he does not decline the offer of such a hearing.   But I do not think the duty is as constricted as has hitherto been held and assumed.   Even if important facts are not in dispute, they may be open to explanation or mitigation, or may lose some of their significance in the light of other new facts.   While the Board’s task is certainly to assess risk, it may well be greatly assisted in discharging it (one way or the other) by exposure to the prisoner or the questioning of those who have dealt with him.   It may often be very difficult to address effective representations without knowing the points which are troubling the decision-maker.   The prisoner should have the benefit of a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society.”
The House of Lords concluded that procedural fairness had required oral hearings in those cases.   
21.	Three points emerge from this passage.   First, it emphasises the value to be placed on the decision-maker actually seeing and hearing both from the prisoner and from those who have been responsible for the prisoner’s management.   Secondly, it allows the prisoner (or more particularly the prisoner’s representatives) to address effectively any concerns which the decision-maker has.   Those concerns will only become apparent at an oral hearing.   Thirdly, an oral hearing reflects the importance of what is at stake.   What was at stake in Mr Roose’s case could hardly have been more important.   By the time the panel was considering his case in 2009 he had been in prison for 17 years beyond the date when his minimum term had expired, and so long as he is considered to be a risk to the public he will not be released.   Treacy J was surely right when he spoke of cases like that of Mr Roose calling for the highest standards of procedural fairness.
22.	There are some other cases which it is necessary to mention.   The first is O’Connell.   Although the case was primarily concerned with whether Art. 5(4) was engaged in those cases where the Board was considering the release of a prisoner half-way through his custodial term, the Divisional Court addressed the question of whether procedural fairness required the Board to convene an oral hearing when considering that issue.   Latham LJ said at [24]:
“It seems to me that the Parole Board should be predisposed to holding an oral hearing in such cases.   That would certainly be the case where there is any dispute of fact, or any need to examine the applicant’s motives or state of mind.   But in the present case, I do not read the Parole Board decision as being one which could have been affected in any way by anything further that the claimant could have said beyond that which he had set out in his written representation.”
Accordingly, in a case in which written representations were made to the Board by the prisoner or his representatives, it is necessary for the Board to consider whether in the particular circumstances of the case an oral hearing would have made the Board’s consideration of the case any more informed, and its assessment of the risk the prisoner posed any more accurate, than was already the case.   
23.	This point was expanded on by Langstaff J in the recent case of Osborn v The Parole Board [2010] EWHC 580 (Admin).   That was another case in which the Board had decided not to recommend the release of a prisoner who had been released on licence after serving the custodial element of his determinate sentence but who had been recalled to prison for breaking the terms of his licence.   The Board then refused the prisoner’s request for its decision to be reconsidered at an oral hearing.   At [32], Langstaff J said:
“For fairness to demand an oral hearing there must be something which the oral nature of such a hearing can contribute by reason of the fact that it is oral and held in [the prisoner’s] presence or that of his representatives which is of relevance to that hearing or to future potential hearings.   I do not rule out that there may be circumstances in which even though there is nothing of such relevance to add there may on the exceptional facts of a case be such a need for the prisoner to see and understand how his case is being considered that procedural fairness demands a hearing in his presence, or that of his representatives: but such cases if they exist will be rare, for by definition from the Board’s point of view it is being invited to participate in a process when the prisoner’s participation can add nothing of relevance.   From the prisoner’s point of view, it is a waste of his time to take part in an oral hearing when nothing of relevance may be gained, and may even risk being a hollow charade where he has already responded in writing with all the relevant representations.   If there is no obvious relevance, there is no good reason for the Board to bear the additional burdens of arranging and holding an oral hearing.   Further, in reaching a decision whether there is such potential relevance, and whether to hold such a hearing, the Parole Board should have regard to the reasons given by or on behalf of a prisoner for seeking an oral hearing.”
The application of these principles to Mr Roose’s case
24.	There was little merit in the reasons which Mr Roose gave the Board when he requested an oral hearing.   His latest OASys assessment had been carried out too recently to justify another one.   He did not say why such representations as could be made on his behalf could not have been made in writing, and he did not say how the questioning of him would add to the single member’s knowledge of his case, or how its “exposure” to him in the artificial setting of a Board hearing would really have better informed the single member’s assessment of the risk he posed.   But a very different case was advanced at the hearing of this claim, and it is necessary to spell that case out with some care.   
25.	Even if the Board’s review of a person’s case does not result in a direction for his release or a recommendation that he be transferred to open conditions, the review can still have an important impact on his management in prison, and a significant effect on future reviews.   Mr Roose’s case is said to be a classic example of that.   As a result of his latest review noting that it had been recommended that he be assessed for his suitability to undergo the Dangerous and Severe Personality Disorder programme, arrangements for such an assessment were put in place.   Mr Roose refused to co-operate with that assessment.   The consequence was that he has remained in his current prison, and he will either continue to be there for the foreseeable future, or his refusal to be assessed may be regarded as increasing the risks he poses, and result in his security classification being changed from C to B.   Whatever happens, his refusal to be assessed will be taken into account on his next review, and it could have an adverse impact on the consideration of his case.   
26.	Against that background, we were told by Ms Krause that what Mr Roose really wanted an oral hearing for was to enable him and his representatives to question whether assessing his suitability for the Dangerous and Severe Personality Disorder programme was remotely appropriate for him.   Indeed, prior to receiving the dossier which contained the report raising for the first time the possibility of him going into the programme, he was not looking for the review to direct his release.   He was just going to be asking the Board to recommend his transfer to open conditions – no doubt because he recognised (as the court noted in R (on the application of Yusuf) v The Parole Board [2010] EWHC 1483 (Admin)) that it is rare for a lifer to be released without having spent some time in open conditions.   Indeed, in Yusuf, the court referred to the directions given to the Board by the Secretary of State under section 239(6) of the Criminal Justice Act 2003 in August 2004 about the transfer of lifers to open conditions.   Para. 1 of those directions explains the link between such a transfer and the prisoner’s eventual release:
“A period in open conditions is essential for most life sentence prisoners (lifers).   It allows the testing of areas of concern in conditions that more closely resemble those that the prisoner will encounter in the community often after having spent many years in closed prisons.    Lifers have the opportunity to take resettlement leave from open prisons and, more generally, open conditions require them to take more responsibility for their actions.”
27.	Why was Mr Roose so unwilling to be assessed for his suitability for inclusion in the Dangerous and Severe Personality Disorder programme?   The answer comes from one of the witness statements of Anita Bromley, a prison law consultant with Mr Roose’s solicitors.   She said that the programme is available only at two prisons, HMP Frankland and HMP Whitemoor, and at two secure hospitals, Rampton and Broadmoor.   Since Mr Roose is not suffering from a treatable mental illness, the conditions for his transfer to the latter under the Mental Health Act could not be satisfied.   And as a category C prisoner, Mr Roose could hardly be transferred to either of the two prisons in which the programme is offered, because they are only offered there in units for category A prisoners.   Moreover, it would put Mr Roose’s transfer to open conditions back for many years.   It would take “many months” for his suitability for the programme to be assessed, and the programme itself lasts for 5-7 years.   During that time, Mr Roose would be treated within the hospital model, with regular case conferences attended by psychiatrists, psychologists, social workers and other professionals.   No courses or programmes addressing his offending behaviour would be offered to him during the first 5 years of the programme.   
28.	Apart from that, there is the question of how realistic is the possibility that Mr Roose may even be eligible for the programme.   The idea that his personality disorder might be so severe, and as a result that he might be so dangerous, as to qualify for inclusion in the programme stands in “stark contrast” to the opinions expressed in his two previous reviews that he had been suitable for transfer to open conditions.   Indeed, in order to test that, Ms Bromley commissioned a report on Mr Roose from Ms Claire Charlesworth-Moore, a consultant forensic psychologist who works within the Dangerous and Severe Personality Disorder unit at Rampton Hospital.   Having interviewed him and subjected him to a number of clinical tests, her view – as expressed in a report dated 22 May 2010 – was that Mr Roose’s personality disorder was not of such severity as to bring him within the criteria for inclusion in the programme.   
29.	Against that background, the case advanced on Mr Roose’s behalf is that an oral hearing may have enabled (a) Dr Brook-Tanker to be questioned on her comment that the Board may wish to consider whether Mr Roose should be assessed for his suitability for treatment under the programme, and (b) Mr Denning to be questioned (i) about why he thought that Mr Roose would benefit from the programme, (ii) whether his view would have been any different if he had appreciated that Dr Brook-Tanker had not said that Mr Roose would benefit from such a move, nor even that she was recommending that he be assessed for such a move, but only saying that the possibility of such a move was something which the Board may wish to consider, and (iii) about whether in those circumstances Mr Roose’s transfer to open conditions was still inappropriate.   If necessary – and if Ms Charlesworth-Moore’s report could have been commissioned earlier than it was – Ms Charlesworth-Moore could have told the panel about why Mr Roose did not satisfy the criteria for inclusion in the programme.   Finally, representations on all these topics could have been made, and they could have particularly compelling bearing in mind the premium which our system places on oral advocacy.   
30.	Two points are taken in response to all this by Ms Samantha Leek for the Board.   The first is that the Board has a very limited remit.   Its power to give directions for lifers is limited by sections 28(6) and 28(7) of the Crime (Sentences) Act 1997 to direct a lifer’s release, though it is also under a duty pursuant to section 32(2) of the Criminal Justice Act 1991 “to advise the Secretary of State with respect to any matter referred to it by him which is to do with the early release or recall of prisoners”.   It is pursuant to that duty that the Board gives advice to the Secretary of State about whether lifers should be transferred to open conditions.   But that is the extent of its statutory remit.   That was why, when the Secretary of State referred Mr Roose’s case to the Board for his latest review, the Secretary of State’s referral included the following paragraph:
“… the Board should note that it is not being asked to comment on or make any recommendation about:
(i)	the security classification of the closed prison in which the prisoner may be detained
(ii)	any specific treatment needs or offending behaviour work required
(iii)	the date of the next review.”
Since the Board could not itself make any recommendation about whether Mr Roose should be assessed for his suitability for inclusion in the Dangerous and Severe Personality Disorder programme, there would be no point in an oral hearing being convened to address that issue.   
31.	The difficulty with all that is that it does  not reflect what happens on the ground.   The Rules require the Board to give reasons for its decisions, and the Secretary of State’s referral of Mr Roose’s case to the Board required “full reasons” for any decision or recommendation made.   Even though the Board was not being asked to comment or make recommendations about “any specific treatment needs or offending behaviour work required”, nevertheless the Board invariably comments on matters of that kind because it cannot really give reasons for its decision or recommendation without doing so.   Those comments, coming from so independent and authoritative a source, will naturally be given considerable weight within the prison when it comes to deciding how the prisoner should be managed while in prison and what courses he should be offered – and inevitably those comments will feed into the prisoner’s next review.   
32.	Moreover, the suitability or otherwise of Mr Roose for the Dangerous and Severe Personality Disorder programme fed into the question of whether he was ready for transfer to open conditions, and therefore was relevant to one of the issues within the Board’s remit.   For example, if Mr Denning had understood the very limited nature of Dr Brook-Tanker’s comments, and had realised that it was not even a recommendation, that might have had an impact on his view about whether the time had come for him to recommend – as he had done five years earlier – for Mr Roose to move to an open prison.   
33.	The second point which the Board drew to our attention through Ms Leek was the complete absence of any representations from Mr Roose or his solicitors.   Neither the single member when reaching his or her original decision, nor the duty member considering the request for an oral hearing, had any idea what Mr Roose’s real concerns were and what he was hoping to get out of the review.   How could it be said that procedural fairness required an oral hearing to be convened in those circumstances?   We see the force of that, but it is necessary to look at things from the point view of Mr Roose and his solicitors.   They received the dossier some time in February 2009, though Ms Bromley did not state exactly when.   In order to provide written representations on Mr Roose’s behalf, his solicitors had to visit him in prison to take his instructions, retrieve his file from storage to extract the previous reports on him (since so many of them had previously recommended his transfer to open conditions), obtain documentary evidence of the impractibility of a category C prisoner who was not suffering from mental illness being suitable for one of the very limited number of places on the Dangerous and Severe Personality Disorder programme, to arrange for Mr Roose to be interviewed by a forensic psychologist to report on whether Mr Roose would be likely to satisfy the criteria for inclusion in the programme, and to ensure that the report was prepared in sufficient time for it to be presented to the Board.   
34.	Bearing in mind (a) that it takes time to arrange an appointment for lawyers to see a serving prisoner, (b) that in view of the limited time given for such an appointment, Mr Roose’s solicitors may have needed to see him more than once, and (c) that it may be (though this was not mentioned to us) that his solicitors would have to get confirmation that funding would be available for all those steps, it is not surprising that his solicitors decided not to ask the Board for more time to make written representations, but instead decided to wait for the provisional decision from the single member.   If that turned out to be adverse to Mr Roose, his solicitors could then require the Board to hold an oral hearing.   That would give Mr Roose’s solicitors sufficient time to complete the steps which needed to be done.   However, by the time that his solicitors would have required the Board to convene an oral hearing, the law had changed, and Mr Roose could only request one.   There was by then only a limited time for his solicitors to prepare a convincing case for an oral hearing, and they did not attempt to do so.   We did not explore with Ms Krause why they did not do so, or what the exact time-frame was, but I can see how it would have been very difficult to marshall the relevant information and documents and to present them in so compelling a way as to persuade the duty member to direct an oral hearing.   
Conclusion
35.	For these reasons, I have concluded that the importance of what was at stake for Mr Roose, and the need for the Board to consider whether the idea floated by Ms Brook-Tanker was a viable possibility (because if it was not, Mr Denning’s view of Mr Roose’s unsuitability for transfer to open conditions might have been affected and later reviews might not have been infected by Mr Roose’s unwillingness to be assessed for the programme), meant that an oral hearing had to be convened if the protection afforded to him by Art. 5(4) was to be respected and the requirements of procedural fairness were to be met.   
36.	What should Mr Roose’s remedy be?   We were informed that the Secretary of State has once again referred Mr Roose’s case to the Board.   A further dossier has been compiled.   It has been sent to his solicitors, and the time for them to make representations about it expired on 5 July.   If this judgment is handed down before the single member makes his or her decision under rule 11(2), it may be that, in the light of this judgment, the single member will decide that Mr Roose’s case should be considered at an oral hearing.   If the single member has already come to the provisional decision by then not to recommend Mr Roose for transfer to open conditions, it may be that in the light of this judgment the duty member will direct an oral hearing.   But even if that happens, Mr Roose will only be entitled to an oral hearing along with those who are being given one now.   Since there is a long wait for oral hearings – indeed, we were told that some prisoners whose requests for an oral hearing had been granted as long ago as May 2009 when Mr Roose’s request was refused are still awaiting theirs – Mr Roose is entitled to a remedy which gives him an oral hearing when he would otherwise have got one if his request for one had been granted in May 2009.   In the circumstances, I would quash the decision of 12 May 2009 refusing his request for an oral hearing of the latest review of his case, I would declare that procedural fairness and Art. 5(4) required there to be an oral hearing, and I would order that the oral hearing takes place when it would have taken place had his request for an oral hearing of the latest review of his case been granted in May 2009.   
37.	For my part, I would not want to put the parties to the trouble and expense of attending court when this judgment is handed down, but it may be helpful if I indicate my provisional views as to costs.   As for the challenge to the compatibility of the Amended Rules with Art. 5(4), Mr Roose should pay the Secretary of State for Justice’s costs incurred in the drafting of the Acknowledgement of Service and the skeleton argument for the purpose of this hearing, but not the costs of the Secretary of State’s representation at the hearing by counsel, since this was simply a renewed application for permission to proceed with this part of Mr Roose’s claim.   Since Mr Roose is publicly funded, such an order should not be enforced without a further order from the court.   As for the challenge to the decision refusing Mr Roose’s request for an oral hearing, although Mr Roose has succeeded, he has done so on a basis which was not one set out in the grounds or in Ms Krause’s skeleton argument.   There were references, of course, to Mr Roose’s unsuitability for inclusion in the Dangerous and Severe Personality Disorder programme in Ms Bromley’s witness statements, but at no point was it ever spelt out what Mr Roose had been seeking an oral hearing for, or why Art. 5(4) or procedural fairness required such a hearing in his case.   His case emerged for the first time when Ms Krause was responding to the court’s questions about what really lay behind all this.   In these circumstances, I would make no order for Mr Roose’s costs.   In the event that appropriate orders for costs cannot be agreed, I would propose that the parties notify our clerks of that within 14 days of the handing down of this judgment, and the court will then decide what the appropriate order for costs should be without a hearing on the basis of such representations as are made.   
38.	If any party wishes to apply for permission to appeal in respect of any aspect of this judgment, I propose that our clerks should be notified of that within 7 days of the handing down of the judgment, and the court will then consider that question also on the basis of any written representations without a hearing.   However, any appellant’s notice will still have to be filed within 21 days of the handing down of this judgment.
Lord Justice Hooper:
39.	I agree.