Scottish Court of Session Decisions

Petitioner - Derek Andrew Campbell, Pirie; Balfour + Manson LLP (for Taylor and Kelly, Solicitors, Coatbridge)

First Respondents - The Parole Board for Scotland, Cullen Q.C. Anderson Strathern LLP

Second Respondents - The Scottish Ministers, Poole; M Sinclair (OSSE)

30 January 2008

Introduction

[1] The petitioner is Derek Campbell. He is a serving prisoner. The first respondents are the Parole Board for Scotland ("the Parole Board"). The second respondents are the Scottish Ministers. On 5 September 2002 the petitioner was convicted in the High Court at Edinburgh of an offence under the Misuse of Drugs Act 1971 and sentenced to a period of nine years imprisonment, to run from that date. He is thus a long term prisoner within the meaning of section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993. He initially served his sentence in closed conditions. Around March 2005 he was transferred to HM Prison Castle Huntly and at some later stage was transferred to HM Prison Noranside, where he remained until January 2007. Both of these establishments are open prisons.

[2] Section 1(3) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 provides that once a long term prisoner has completed one-half of his sentence the Secretary of State must release him on licence, if recommended to do so by the Parole Board. By December 2006 the second respondents referred the petitioner's case to the Parole Board for consideration in terms of this provision. On 9 January the Parole Board considered his case and agreed to recommend his release on parole with effect from 6 March 2007. This decision was intimated to the petitioner by letter dated 25 January 2007. By letter dated 26 January the second respondents wrote to the petitioner informing him that following receipt of a report that he had on several occasions breached his licence conditions, his case was being referred to the Parole Board for their consideration. At a meeting of 20 February 2007 the Parole Board agreed to suspend the petitioner's parole release date and to defer its consideration of the case to allow time for the petitioner to make representations. At its meeting of 13 March the Parole Board decided to withdraw its recommendation that the petitioner be granted parole. The petitioner seeks to judicially review this decision.

[3] Prior to the Parole Board's consideration of the petitioner's case a variety of reports were obtained on him and his progress whilst in prison. These recorded that he had been in constant employment whilst in prison, had never presented any management issues and had never been the subject of a report. They also recorded that over the period of time which he had served in the open estate he had taken some 31 home leaves without incident. It was further recorded that whilst alcohol abuse had contributed to his previous offending history he no longer drank alcohol. At its meeting of 9 January the Parole Board noted that the petitioner had undertaken a large number of successful home leaves which had all passed without incident.

[4] On or about 25 January, having returned from a home visit, the petitioner was returned to HMP Edinburgh by the Governor of Noranside Prison. The Governor intimated his decision to the second respondents by letter dated 25 January in which he explained that the decision was taken in light of information received from the police. He intimated that:

[5] By letter dated 26 January 2007 the second respondents wrote to the petitioner intimating their referral of his case to the Parole Board. A copy of the report from the governor of Noranside Prison was attached to this letter and the petitioner was advised that he was entitled to submit representations to the Parole Board regarding what it termed "the adverse development". By letter dated 6 February 2007 the Parole Board wrote to the petitioner intimating that the second respondents had sent to them a dossier of reports which included "a report of adverse developments that had occurred during your home leaves". They also intimated that they had now received a report from Lothian and Borders Police. In that same letter the petitioner was told that the Parole Board had decided not to disclose the terms of this report to him but that the substance or gist of the information contained in the report was that "you are involved in illegal activities."

[6] The petitioner was also informed that he had the right to submit further written representation to the Parole Board, including representation about the non-disclosure of the report mentioned. On 16 February 2007 the petitioner's then solicitor wrote a three page letter to the Parole Board on his behalf. This letter was put before the Parole Board at its meeting of 13 March 2007. The Parole Board unanimously decided to withdraw its earlier recommendation and gave the following as the reasons for its decision:

[7] On behalf of the petitioner Mr Pirie argued three grounds of review:

[8] Relying on what had been said by the House of Lords in R (West) v Parole Board [2005] 1 WLR 350 and in Roberts v Parole Board [2005] 2 AC 738, Mr Pirie for the petitioner submitted that the Parole Board was required by common law to act in a procedurally fair manner when it made its decision and that in deciding what procedural fairness requires account must be taken of the interests at stake. He submitted that the interest at stake for the petitioner was liberty and was obviously of importance to him. He had been offered an opportunity to make representations to the Parole Board and he had taken up that opportunity through his solicitor. He argued that the letter of 16 February 2007 sent on the petitioner's behalf was sufficient to put facts in issue before the Parole Board which might affect the decision reached. He drew my attention to passages in which the solicitor had said that the allegation regarding drinking in public houses was refuted, to passages in which he had raised scepticism over the allegation of using a mobile telephone while driving, to passages in which he had asked for more information as to the dates and identities of those the petitioner had allegedly been associating with and to passages in which he had asked for details as to the illegal activities in order that the petitioner could respond. In these circumstances he submitted that the interest at stake for the petitioner was such that procedural fairness required the Parole Board to hold an oral hearing before arriving at its decision. This he said was so even although the solicitor acting for the petitioner had not requested such a hearing and despite the fact that the Parole Board (Scotland) Rules 2001 ("the Rules") contained express provision for an oral hearing only in life tribunal cases. The onus was on the Parole Board to hold an oral hearing in order to ensure a fair procedure. In advancing these propositions Mr Pirie relied on what had been said by Lord Bingham of Cornhill in West at paragraphs 29, 31, 35, 45 and 46, and by Lord Slynn of Hadley at paragraph 50.

[9] Mr Pirie also relied on the Northern Irish case of Re Thomson [2007] NIQB 8. In that case a long term prisoner was assessed as suitable for admission to what was termed a resettlement unit. The unit was designed to assist in addressing the needs of prisoners to enable them to settle back into the community on their release. The benefits of admission included town visits and home leave. The applicant was in due course de-selected from the unit by the Governor and returned to mainstream prison. He brought a judicial review challenging the decision based upon the fairness of the procedure whereby he was de-selected. He included within this a complaint that he had not been provided with an oral hearing. The decision to de-select was made in consequence of information provided by other prisoners to the effect that Thomson was an enforcer for a Loyalist faction and had threatened to stab another inmate. He denied the allegations. The Northern Irish court presided over by Weatherup J quashed the decision on the grounds of procedural fairness in not affording the applicant an adequate opportunity to know the case against him or to respond to that case. Mr Pirie submitted that this decision was of importance as the court had relied upon what Lord Bingham had said in West and had applied that reasoning to the case of a prisoner who had not yet been released. It also expressly recognised that an oral hearing might be the only way of resolving disputes as to fact (paragraph [30]) and gave examples of the sorts of ways in which an oral hearing might take place for this purpose, despite the source of the information relied upon being informants whose identities require to be protected.

Second Ground of Review

[10] Mr Pirie's argument in support of his second ground of review was predicated upon the assumption that the Parole Board took account of the contents of the report from Lothian and Borders Police in arriving at its decision to withdraw its earlier recommendation for parole. This he said must be the case for two reasons. Firstly, the report was mentioned in the minute of the Parole Board's meeting of 13 March and secondly the Parole Board must be presumed to have taken account of all the material before it. The result was that in not disclosing information of which it took account the Parole Board put the petitioner at a disadvantage in making representations before it. Mr Pirie of course acknowledged that non disclosure was contemplated by rule 6 of the Rules and he recognised that there would be situations in which the need to follow this procedure would be obvious. However he submitted that the disadvantage which accrued to the petitioner could have been mitigated, either by disclosing more information, or by appointing a (so called) special advocate, or by a combination of both procedures. He argued that it was competent for the Parole Board to appoint a special advocate since it was permitted to regulate its own procedure in dealing with any case (rule 15) and that this power was implied in its duty to make its decision in a manner which was procedurally fair. He relied upon what had been said in Roberts by Lord Woolfe at paragraphs 65 and 66 and by Lord Carswell at paragraph 129. He also drew my attention to what had been said by Lord MacPhail in Gallagher v The Parole Board for Scotland [2005] CSOH 126. In failing to take either of these steps Mr Pirie argued that the Parole Board conducted itself in a way which was not procedurally fair. This could be seen from the fact that the procedure followed denied the petitioner an opportunity to challenge the decision not to disclose more about the report and had the result that he was unable properly to respond to the allegations in the report. In support of this ground of review Mr Pirie referred to the following additional cases: R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531, R (Price) v Governor HMP Kirkham [2004] 1 PLR 373, Re McClean [2005] NIHL 490, General Medical Council v Spackman [1943] AC 627, Boddington v British Transport Police [1999] 2 AC 143, Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945 and Barrs v The British Wool Marketing Board 1957 SC 72.

The Third Ground of Review

[11] Mr Pirie submitted that the reasons for the Parole Board's decision, as stated in the two sentences at the end of their minute of 13 March, left even the informed reader in real and substantial doubt as to the basis of the decision. It could not be ascertained whether the decision was as a consequence of the content of the intelligence information received, the fact of the downgrade in status, the grounds for the downgrade or a combination of these factors. In such circumstances he argued the remedy was to reduce the decision. Mr Pirie relied upon the following cases: R v Secretary of State for the Home Department, ex parte Lillycrop [1996] EWHC Admin 281, R (Tinney) v Parole Board [2006] 1 PLR 189, Wordie Property Co. Ltd v Secretary of State for Scotland 1984 SLT 345, R v Parole Board and Secretary of State for the Home Department, ex parte Oyston [2000] 1 PLR 45 and South Bucks District Council v Porter [2004] 1 WLR 1953.

Submissions for the Respondents

[12] Miss Poole, who appeared for the second respondents, withdrew at the commencement of the hearing upon counsel for the petitioner acknowledging that he would not be seeking interim liberation in terms of his first plea in law. With Mr Pirie's agreement I accordingly repelled the first plea-in-law for the petitioner and upheld the fifth plea-in-law for the second respondents, Miss Poole presented no further submissions.

[13] Mr Cullen Q.C. for the first respondents began by reminding me of the central component of the Parole Board's function. It was, he said, risk assessment and in carrying out that function the paramount concern was protection of the public. Nevertheless, he accepted that the Parole Board had a common law duty to act in a procedurally fair manner in arriving at its decisions. He explained that the nature and quality of the information before it made the Parole Board's job a difficult one and that within the information presented to it there will often be a conflict. Mr Cullen accepted that in the present case there was a conflict between the information presented to the Parole Board on the petitioner's behalf and that presented to it by the second respondents. He said that the correct approach for me to follow was as set out in R (Brooks) v Parole Board and Home Secretary [2004] PLR 324. He drew my attention to what had been said there at paragraphs 28 to 30 and said that when I was considering the overall fairness of the procedure followed it was crucial to bear in mind that the solicitor acting for the petitioner had made detailed responses on his behalf but had made no request for an oral hearing. Mr Cullen explained to me that the Parole Board does not tend to have oral hearings in cases like the present. However, he said that had the petitioner asked for such a hearing the position might have been different.

[14] With this background in mind Mr Cullen submitted that I should examine the question of procedural fairness in the way described by Lord Woolfe in Roberts at paragraph 83(vii). Mr Cullen described this as a test of significant injustice. He said that it was now clear from the speech of Lord Bingham in MB and AF v Secretary of State for the Home Department [2007] UKHL 46, at paragraph 34, that this was the correct approach. He said that the petitioner in the present case could not meet such a test as he had been provided with a fair hearing, in which he was given an opportunity to make representations which were considered and had been provided with a decision containing clear and intelligible reasons.

[15] Mr Cullen advanced his argument by returning to an analysis of the circumstances which lay behind the Parole Board's decision of 13 March 2007. He suggested that there were two difficulties which arose from the representations which had been submitted by the petitioner's solicitor. The first was that the letter of 16 February contained a complaint that the Parole Board had before it confidential information and an associated request that the petitioner should be given access to that information. This was a request which the Parole Board was not in a position to comply with. The second problem was that although it was accepted that the terms of the letter of 16 February made it plain that the petitioner challenged the content of the adverse development report, the Parole Board did not see it as part of their function to resolve that dispute in arriving at their assessment of risk. He referred me to Answers 20 and 21 for the first respondents where it was expressly stated that the basis for the Parole Board's decision was not the petitioner's conduct, but the downgrading of his security categorisation on the grounds that he had breached his temporary release licence conditions. The Parole Board proceeded upon the undeniable fact of the downgrade in the petitioner's security status. That was the factor which informed their assessment of risk. As Mr Cullen explained it, had there been an oral hearing all that would have happened was that the petitioner would have denied his involvement, there would have been no intelligence information led and the Parole Board would have been unable to look behind the fact of downgrade. Accordingly the Parole Board had no practical option but to accept the fact of downgrade and factor it into its decision. In these circumstances he submitted that there was no need to hold any form of oral hearing as it would not have advanced matters beyond the information already before the Parole Board. The procedural fairness of the decision making process was evident from the fact that the petitioner was given an opportunity to make written representations and from the recognition that it was not necessary for the Parole Board to resolve the issue of the underlying challenge as to the petitioner's conduct as what was relied upon was the fact of the downgrade in his status.

[16] Mr Cullen went on to explain that the downgrade in status was taken into account by the Parole Board in the context of its own knowledge as to the procedures which governed such a process. He referred me to the Prisons and Young Offenders Institutions (Scotland) Rules 2006 (SSI 2006 No. 94). Part 3 of these rules govern the supervision levels which may be assigned to prisoners. Within rules 17 to 19 there is a procedure for determining the application or review of a supervision level. A procedure is provided for intimation of a review of a prisoner's supervision level and an opportunity to make representations thereon. A prisoner dissatisfied with any such review of his supervision level is entitled to make a complaint under the prisoners' complaints procedures, to make an application to the Scottish Prisoners Commissioner, or to challenge the decision by judicial review. Mr Cullen submitted that it was relevant to bear in mind that none of these steps had been taken by the petitioner. My attention was also drawn to the terms of the Parole Board (Scotland) Rules 2001 which set out a structure within which the Parole Board was to operate. It could be seen that this structure was designed to ensure that a fair procedure was utilised. In this context he said that it was important to appreciate the wide powers given to the Parole Board in terms of rule 8, which governed the matters to be taken into account when dealing with the case of a person whose case had been referred to them.

[17] Having sought to put the Parole Board's decision into the context as described above, Mr Cullen's submission was that, when one looked at the totality of the procedure which had been followed, it was clear that what occurred in the petitioner's case was fair. He suggested that the issue in the present case was not the same as that in West as the petitioner had only a right to be considered for release. The present case was concerned with a fact specific set of circumstances, preponderant amongst which was that the petitioner, although legally represented, had not requested an oral hearing. He referred me to the importance which had been given to such a factor by the Court in R (Thompson) v Law Society [2004] 1 WLR 2522. Mr Cullen emphasised that no further information was being offered by the petitioner and there was nothing to suggest that an oral hearing would assist in resolving the dispute before the Parole Board.

[18] Moving on from the issue of an oral hearing, Mr Cullen's submission was that the Parole Board had not taken account of the report from Lothian and Borders Police in arriving at its decision. This, he said, reflected the information he had been provided with on the point and was in any event reflected in the decision as provided to the petitioner.

He said that a proper reading of the decision made it obvious that the Parole Board had relied only on the intelligence information which had led to the petitioner's downgrade and not on the separate report from Lothian and Borders Police. The importance of this was that the content of the intelligence information leading to the petitioner's downgrade had been intimated to him, whilst the content of the report had not. That the Parole Board was able to put certain matters out of its mind was clear from what had been said by Lord Bingham of Cornhill in Re McLean [2005] NI (HL) 490 at paragraph 36. These submissions, he argued, dealt with the need to appoint a special advocate. That apart, he submitted that the reasons given by the Parole Board for their decision of 13 March satisfied the needs of the test referred to by the petitioner. He referred me to Laidlaw v The Parole Board for Scotland [2007] CSOH 98 as a recent example of a reasons based challenge in which the cases of both Oyston and Lilycrop had been considered.

Discussion

[19] I can begin by considering the second and third grounds of review as advanced by the petitioner. I agree with Mr Cullen that the logical interpretation of the terms of the Parole Board's decision is that they have placed no reliance on the undisclosed report from Lothian and Borders Police. What they have done is to proceed upon the fact of a downgrade in the petitioner's status which flowed from the receipt of the earlier disclosed intelligence material. The decision says so in terms. No mention is made of the separate report which prompted the complaint as to non disclosure. It was accepted on the petitioner's behalf that the Parole Board was a body of a sort which could be expected to put irrelevant or other material out of its mind and Mr Pirie acknowledged that his argument in relation to the appointment of a special advocate only arose upon the assumption that the Parole Board's decision had been taken in light of, or influenced by, the undisclosed report. For the reasons advanced by Mr Cullen, I am satisfied that this assumption is unwarranted and that accordingly the arguments advanced under the petitioner's second ground of review have no application.

[20] It is, in my view, sufficiently clear what the basis of the Parole Board's decision was. As stated, the Parole Board arrived at their assessment of risk in light of the petitioner's downgrade to closed conditions. The Parole Board has noted the reason for the downgrade and the basis for it. It is the fact of downgrade on the ground of breach of temporary licence conditions which has informed the Parole Board's decision. From this appreciation it becomes clear why no mention is made of the dispute as to the underlying basis for downgrade. The Parole Board has not sought to determine this matter.

[21] The interesting and more difficult question is how ought the Parole Board to have treated the representations made on the petitioners behalf? As Mr Cullen acknowledged they did introduce a conflict within the material before it. The stark proposition advanced was that it was not possible for someone in the petitioner's position to challenge before the Parole Board the underlying facts which had led to his downgrade in security status where that has arisen out of the supply of confidential information. The Parole Board did not see the resolution of such conflict as part of its function and would not be prepared to attempt such an exercise, regardless of the nature of the evidence offered by the prisoner concerned. This struck me as a far reaching proposition and appeared to call into question the purpose in providing the petitioner with the information as to what the intelligence disclosed and offering him an opportunity to "submit representations regarding the adverse development to the Parole Board" (letter of 26 January 2007 from the Scottish Executive). Despite relying on this opportunity to make written representations as part of his argument as to the fairness of the procedure under discussion, Mr Cullen had some difficulty in explaining the point of this opportunity in light of the approach taken by the Parole Board. Nor was he able to explain in what way these representations had been considered.

[22] During the course of the argument before me the decisions of the House of Lords in the cases of both West and Roberts were referred to at some length by Counsel. Certain similarities between the circumstances in Roberts and the present petitioner were clear. Like the petitioner, Roberts was a prisoner who was in an open prison when a dossier containing a recommendation for his release was prepared and intimated to him. He too was then removed to closed conditions upon the basis of allegations as to his conduct which he denied. No criminal or disciplinary charges were brought against him. In his case also intimation was given that sensitive material was to be placed before the English Parole Board for its consideration, without disclosure of that material to the prisoner or his representatives. There then commenced lengthy proceedings concerning the question of whether the Parole Board could consider this sensitive material at a closed hearing at which the prisoner would be represented by a specially appointed advocate. The purpose of this procedure, which was decided upon by the English Parole Board itself, was to enable him to challenge the underlying facts upon which a risk assessment would be made. It was also clear that the entire debate in the case of Roberts proceeded upon the understanding that he would be entitled to an oral hearing of an adversarial nature in which he (or the specially appointed advocate) would be entitled to question and call witnesses. This raised the question of why such procedures were necessary in Roberts' case if Mr Cullen's submission, that it was not possible for a prisoner to challenge before the Parole Board the underlying facts upon which a change in his security status was made, was correct. No answer was provided to this question during the debate before me. However it is clear that the circumstances in which Roberts appeared before the English Parole Board and those which took the petitioner before the Parole Board for Scotland are quite different.

"It was common ground that this provision was engaged (article 5(4) ECHR). A prisoner whose tariff period has expired is entitled to have his continued detention decided by a "court", and for these purposes the Parole Board has the essential features of a court. An adversarial procedure involving oral representation and the opportunity to call and question witnesses is required: Hussain v United Kingdom (1996) 22 EHRR 1."

Part IV of the Parole Board (Scotland) Rules 2001 contains the provisions which apply to a Scottish prisoner serving a life sentence who has served the tariff term imposed upon him. These rules provide for an oral hearing with representation and the right to call and challenge witnesses, just as those applying to Roberts did. The petitioner however is not in the same position. He is a long term prisoner serving a sentence of nine years imprisonment to date from 5 September 2002. He is eligible for release on licence, if the Parole Board so recommend, by virtue of having served more than half of his sentence. In the absence of any such recommendation he will not acquire a right to be released on licence until he has served two-thirds of that sentence (Prisoner and Criminal Proceedings (Scotland) Act 1993 section 1). Article 5(4) of the European Convention on Human Rights has no application to a prisoner who is serving a fixed term sentence and has not been released on licence - R (Giles) v Parole Board [2004] 1 AC 1, Lord Hope of Craighead at paragraphs 41 and 51 and Lord Hutton at paragraph 74. Therefore whilst it may be that at some passages in the case of Roberts their Lordships gave guidance of general application to the question of what constitutes procedural fairness in proceedings before the Parole Board, they were essentially dealing with a quite different situation. In Roberts case the nature of the hearing necessary, and the rights of the prisoner within that hearing, were settled by authoritative jurisprudence. No one has suggested that the same can be said in the petitioner's case.

[24] In the conjoined cases of West and Smith the House of Lords gave consideration to circumstances which were nearer to those of the petitioner. In the case of each appellant their Lordships held that procedural fairness at common law required that an oral hearing be held, despite no request being made for such a hearing in Smith's case. Mr Pirie placed considerable reliance upon the terms of this decision, whereas Mr Cullen pointed out that the case was not binding upon me. It seems to me that in order to properly determine what assistance can be gained from this decision it is necessary to examine the facts of each of the two cases before their Lordships and also to understand the development of the issues in each.

[25] In each case the appellants were English prisoners who had been released on licence. West was a short term prisoner who had been released after serving half of a three year sentence. Smith was a long term prisoner who had been released after serving two thirds of a six and a half year sentence. Each had his licence revoked on the ground that he had breached its conditions and was recalled to prison by the Secretary of State exercising the powers given to him by section 39 of the Criminal Justice Act 1991. In terms of the further provisions of that section the case of each prisoner was then referred to the English Parole Board to consider whether or not he ought to be re-released on licence. Each had the right, in terms of the same section, to make written representations with respect to his recall. Very similar provisions are applicable to Scottish prisoners in such circumstances and are found in section 17 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.

[26] In West's case breach of his conditions was said to have arisen out of a number of different factors, failing to keep in touch with his probation officer, failing to live regularly at his approved address, visiting the hostel address of a former partner, allegedly assaulting her and being suspected of kicking in a door at her hostel. In Smith's case the breach of his conditions was said to have arisen out of his involvement in drug abuse. West's solicitors wrote to the Parole Board making representations as to why he should not have been recalled and urging it to hold an urgent oral hearing to be attended by witnesses who would give evidence on oath. These representations included explanations for certain lack of contact with his probation officer, a claim that he spent only one night away from his approved address, a denial that he had assaulted his former partner and an explanation that he had broken open the door to prevent her from harming herself. Smith's solicitors also submitted written representations to the Parole Board asking for his re-release. In these submissions Smith's drug use was admitted but certain information was put forward by way of explanation and mitigation. No request was made for an oral hearing. In the case of each prisoner the Parole Board refused to order his re-release and each decision was challenged by judicial review.

[27] When West's case was before the Court of Appeal, [2003] 1 WLR 705, the issue argued on his behalf was narrower than eventually presented to the House of Lords. It was, in deciding whether or not to recommend the re-release of a determinate sentence prisoner whose licence had been revoked, were the Parole Board determining criminal charges within the meaning of Article 6, so as to attract the procedural safeguards ordinarily applicable to the fair trial of such charges and in particular to an oral hearing. Their Lordships held, by a majority, that they were not. Despite this decision, each of Lord Justices Simon Brown and Sedley went on to make observations as to the circumstances in which an oral hearing might nevertheless be necessary arising out of common law principles. At paragraph 40 Simon Brown LJ said:

"In my judgement the Parole Board should be altogether readier than presently they are to hold oral hearings if in truth their determination is likely to turn upon the resolution of important issues of fact. It is, of course, unnecessary to reach a view as to whether that was so in the circumstances of the present case. Plainly it will sometimes be so and on those occasions the correct determination may (I do not say invariably, or even generally, will) only be possible following some form of oral hearing albeit not necessarily one attended by the full panoply of procedural safeguards appropriate to a criminal trial."

At paragraph 44 Sedley LJ, referring to the need for the Parole Board's practice to contain a standard of due process which does proper justice to prisoners case by case, said:

"This means, as Simon Brown LJ says, that attention needs to be given in each recall case to what is necessary for its just disposal. A prisoner who does not ask for an oral hearing cannot ordinarily expect one; but even here it may become apparent to the Parole Board that a hearing is needed if it is to reach a safe conclusion on a disputed issue. A prisoner who does ask for an oral hearing will not necessarily be entitled to one: again it will depend on what is necessary for a fair disposal of the issues."

At paragraph 46 he said:

".. what matters both in modern public law and under the Convention (two streams which since 2 October 2000 have flowed in one channel) is that the prisoner should have every reasonable opportunity to contest his recall. This means, in my view, that the Home Secretary's reasons for recalling the prisoner must stand up by themselves - in other words, that it is not for the prisoner to displace a fait accompli - as well as that the prisoner's own submissions to the contrary must be fully and fairly entertained. Among the things which will differ from our received criminal process - though not necessarily from that of other states signatories of the Convention or of modern international criminal tribunals - is the mode of proof. Provided the overall objective of a fair hearing is met I see no great problem in any of this."

Hale LJ agreed with these observations in her dissenting opinion as is clear from paragraph 48 where she said:

"The true issue which the claimant wished to have determined in this case was whether he should have been given an oral hearing, with legal representation, before the Parole Board decided whether to recommend his re-release under section 39(5) of the Criminal Justice Act 1991 after his recall by the Home Secretary under section 39(2). If that had been the question asked of this court, I have little doubt that I would have answered it in the affirmative, if only for the reasons given by Simon Brown LJ in paragraph 40 of his judgement, considered in the light of the facts in this case."

[28] The importance of these comments by the members of the Court of Appeal lies firstly in their recognition that the Parole Board's assessment of risk may depend upon the resolution of contested issues of fact, and secondly in their recognition of the role which an oral hearing may play in such a resolution. Smith's case was heard by the Court of Appeal after their judgement in West was available. The citation is [2004] 1 WLR 421. The contention on Smith's behalf was that in order for the proceedings before the Parole Board to be fair an oral hearing was necessary. The argument was advanced under reference to articles 5 and 6 of the European Convention on Human Rights and on the basis of the common law. The Court dismissed the application on all grounds. At paragraph 37, in dealing with the common law argument, Kennedy LJ acknowledged that the board had the power to act flexibly and said:

"Mr Pannick (Counsel for the Parole Board) submits that the test as to when an oral hearing should be ordered is that indicated by Mr McCarthy in para 4 of his statement, namely where there is a disputed issue of fact which is central to the board's assessment and which cannot fairly be resolved without hearing oral evidence. That is substantially the same as was said by Simon Brown LJ in West's case, and it is a test with which I agree. Mr Pannick goes on to submit that the issue which the Parole Board had to consider in this case was the risk to the public as indicated by the directions, and where, as here, the primary facts were not in dispute the Parole Board was entitled to the benefit of written representations from the claimant's solicitors to make its own evaluation. To my mind that is plainly right and an oral hearing was not required by common law."

What appears to have been crucial was not the absence of a request for an oral hearing but that the primary facts were not in dispute.

[29] In the conjoined hearing before the House of Lords both claimants argued that when a determinate sentence prisoner released on licence seeks to resist subsequent revocation of his licence he should be offered an oral hearing at which the prisoner can appear and either on his own behalf or through a legal representative present his case. The argument was based on common law and on articles 5 and 6 of the European Convention on Human Rights. Their Lordships unanimously (on this point) held that on the facts of each case the Parole Board had breached its duty to act in a manner which was procedurally fair by not offering the prisoners an oral hearing.

[30] In dealing with the argument at common law Lord Bingham of Cornhill, with whom the other judges agreed, referred with approval to the observations of Simon Brown LJ at paragraph 40 of his judgement as quoted above. He did not however give support to the observations of Sedley LJ as to the consequence of failing to ask for an oral hearing and their Lordships decision in Smith's case in any event demonstrates that the absence of a request is not determinative. Further, when it came to an examination of the test accepted by the Court of Appeal in Smith's case, as set out in the quote from the judgement of Kennedy LJ above, Lord Bingham appears to have been of the view that such a formulation was too restrictive. At paragraph 35 his lordship said this:

[31] The way in which Lord Hope of Craighead put the matter, at paragraph 68, was this:

[32] What I take from this is that throughout the consideration of these cases, in both the Court of Appeal and in the House of Lords, there was a firm recognition that an oral hearing had a place within the Parole Board's procedures for short or long term prisoners who sought to challenge revocation of their licences, despite there being no such provision (beyond interview) within the statutory regime or rules applicable to such prisoners. I also see a clear understanding on the part of all of the judges concerned of the purpose of an oral hearing in such circumstances. It is to provide the prisoner with a procedure within which he can seek to challenge issues of fact upon which the Parole Board's assessment of risk may depend. Although it is clear that there is no fixed requirement for an oral hearing in all cases, I also understand that their Lordships saw the common law duty to act in a manner which is procedurally fair as requiring an oral hearing, in appropriate circumstances, in order to provide the prisoner with a procedure which fairly reflects, on the facts of his particular case, the importance of what is at stake for him, as for society. I can see no reason why this guidance as to what the common law duty of procedural fairness requires should have any less application to the procedures of the Parole Board for Scotland than it does elsewhere. Although the Boards north and south of the border are governed by different rules and statutes, their remits and functions are indistinguishable. It is admitted in Answer 20 for the first respondents that they had the power to hold an oral hearing in the petitioner's case and Mr Cullen's position was that had such a request been received it would have been given consideration.

[33] Is the guidance given by the House of Lords of any application then in the particular circumstances of the petitioner's case? As I recognised earlier he was not in an identical position to the prisoners in the cases of West and Smith. Nevertheless, he was a prisoner whose case had been considered before the Board on the basis of a dossier which disclosed impeccable behaviour within the prison and many home visits which had passed without incident. Upon this understanding he was informed that he would be released on the 6 March 2007. The very day after being told this he was informed that his case was to be referred back to the Parole Board for reconsideration in light of the adverse development report. The interest at stake for the petitioner was his right to be released in light of the Parole Board's first recommendation. But for reliance upon the information within the adverse development report his status would have remained unchanged and he would have been released. In my judgement this is a difference between the interests at stake for West and Smith but one of degree rather than of substance.

[34] In my judgement the interests at stake for the petitioner were such as to entitle him to a procedure which allowed him to challenge the truth or accuracy of the information which led to his downgrade in security status. This is in my view an application of the guidance obtainable from an analysis of the cases of West and Smith and is consistent with the fact that the Parole Board is the primary decision maker as to risk. It is not entitled to defer to the opinion of others such as the Secretary of State or a probation officer - R v Parole Board, Ex p Watson [1996] 1 WLR 906, referred to with approval by Lord Bingham in West at paragraph 26.

[35] Mr Cullen made much of the fact that an oral hearing had not been requested by the petitioner. However, in placing the reliance which he did on the passages to which he referred in (R) Brooks v Parole Board, no account was taken of the fact that the court was there relying on Sedley LJ's Court of Appeal judgement in West and indeed to the precise passage which was not approved of by their Lordships in the House of Lords. The same applies to the decision in R (Thompson) v Law Society where the Court expressly applied the decision of the Court of Appeal in Smith and took the view that the failure to request an oral hearing was fatal. The fact that the petitioner had been afforded an interview with a Board member was also relied upon. However this took place prior to the original decision to recommend release on licence and as a consequence did not touch upon the matters mentioned in the adverse development report.

[36] In the case of Re Thomson relied upon by the petitioner the Queen's Bench Division of the High Court of Justice in Northern Ireland relied upon the guidance to be found in the House of Lords decision in West. In so doing the court recognised that there was no fixed requirement for an oral hearing, although quashed the decision complained of both on the grounds of breach of procedural fairness in not allowing the applicant an adequate opportunity to know the case against him and in not affording him an adequate opportunity to respond to that case. It is worthy of note that when considering the question of procedural fairness at common law the court in Re Thomson also pointed out that it is a central requirement of procedural fairness that a party has a right to make a response which will be considered by the decision maker. Such a right cannot be satisfied by the opportunity to provide written representations which the Parole Board have pre-determined they will not entertain, which appears to me to be the effect of the approach which Mr Cullen described to me. The requirements of the common law right to procedural fairness, as informed by the cases to which I have referred, appear to me to demonstrate that the approach which the Parole Board took in the petitioner's case was wrong.

[37] Mr Cullen also of course sought to submit that the proper test to apply was that of significant injustice. In this context what Lord Woolfe in Roberts and Lord Bingham in MB and AF were referring to was whether a decision had been taken by the Parole Board using a procedure (my emphasis) that involved significant injustice to the prisoner (Roberts para 83 (vii)). Since in the present case the petitioner did seek to challenge the truth and accuracy of the allegations that led to the adverse development report and since procedural fairness required that his own submissions be fully and fairly entertained, it is my judgement that the procedure adopted by the Parole Board did involve significant injustice to the petitioner. Facts were in issue in his case. If the petitioner's contentions were established then it is obvious that the outcome might be affected. In these circumstances it is my view that the petitioner is right in contending that he was not treated with the degree of fairness which his challenge required and that he ought to have been provided with an oral hearing. What the result of such a hearing would be I cannot pre-judge. I am not in a position to conclude, as I was urged to, that no different outcome would or could be possible. I also observe that in West there was no examination of the basis upon which it was said that he could substantiate the challenges which he asserted.

[38] The nature of any oral hearing to which the petitioner might be entitled was something which was also touched upon in submissions before me. It does not seem to me that this is something which I can determine in advance. There are however a number of helpful comments to be found in West and Smith, in the judgements of their Lordships in the Court of Appeal and in the House of Lords, as to the difference between the nature of an oral hearing sufficient to satisfy the requirements of procedural fairness and the requirements of a criminal trial. It is also correct to note that there might well be difficulties of a practical nature if disputed facts are put before the Parole Board which arise out of intelligence information. However, I cannot see that if a prisoner has the right in general to challenge the accuracy of factual material upon which the Parole Board's determination may turn, he loses that right if the same sort of conflict arises as a consequence of the availability of intelligence material, whatever that comprises.

[39] In any event the nature of any practical difficulty may well depend upon the particular nature of the intelligence relied upon. It may also depend upon the circumstances in which such intelligence material was ingathered. Experience in other contexts demonstrates that the need to protect the source or method of ingathering intelligence often turns upon the stage reached in a given enquiry. Equally it can often be possible to provide sufficient information and detail without compromising any genuine or subsisting need for secrecy. The cases of Roberts and Re Thomson each provide examples of different ways in which the balance between the need to protect sensitive information and the rights of the individual affected can be achieved.

[40] In the whole circumstances of this case I am satisfied that procedural fairness required that the petitioner be given an oral hearing. I am also satisfied that as a result of the approach adopted by the Parole Board the petitioner's representations were not fully and fairly entertained. Accordingly I will uphold the petitioner's second plea-in-law and his fifth pleas-in-law under exception of the reference to inadequate reasoning and grant declarator and reduction as craved in statements 3(b) and (e). I will repel the petitioner's third and fourth pleas-in-law. I will repel the first, second and third pleas-in-law for the first respondent and the first, second, third and fourth pleas-in-law for the second respondent. I dealt with the petitioner's first plea-in-law, the fourth plea-in-law for the first respondent and the fifth plea-in-law for the second respondent on the first day of the hearing.