25/02/2026
Written by: Tim James-Matthews
Background
The Parole Board has the power to determine whether to release a prisoner from prison on the papers, without an oral hearing. Such decisions carry significant consequences for the liberty of the prisoner concerned, and they also entail a careful assessment of the risk which the prisoner may pose to the public. For that reason, the Board often convenes an oral hearing, in the presence of the prisoner, to consider issues concerned with release.
In 2007-2009, the Board gradually shifted its practice in favour of more paper-based decisions. In February 2007, it issued unpublished guidance to panel members in relation to determinate sentence prisoners recalled to custody, which limited the circumstances in which an oral hearing would be held. In 2009, it issued guidance in relation to indeterminate sentence prisoners, which provided that a hearing should only be held where the Board member considering the case on the papers determined that “there is a realistic prospect of release or a move to open conditions”, or that “the assessment of risk requires live evidence from the prisoner and/or witnesses”.
The lawfulness of the Board’s failure to hold oral hearings was challenged by three prisoners (Michael Osborn, John Booth, and James Reilly).
Decision
The Supreme Court (Lord Reed giving the only judgment) began by emphatically reaffirming the role of the common law in protecting fundamental rights: “the protection of human rights is not a distinct area of the law, based on the case law of the European Court of Human Rights, but permeates our legal system:” [55], see generally [54]-[63].
The Court emphasised the inherent value of procedural fairness: adopting a fair procedure is liable to result in better decisions, by ensuring that the decision-maker receives all relevant information and that it is properly tested: [66-67]. More fundamentally, justice is “intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions:” [68]. Procedural fairness is a function of the rule of law, as it “promotes congruence between the actions of decision-makers and the law which should govern their actions:” [71].
The Court concluded that the Board should hold an oral hearing whenever fairness to the prisoner requires it, in light of the facts of the case and the importance of what is at stake: [81]. The Board should bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute: [82]. Given that Parole Board release decisions affect the liberty of the prisoner (and may, in any event, have serious consequences for a prisoner’s management in custody), they require particularly anxious consideration: [83-84]. Fairness will require an oral hearing where the Parole Board is required to make judgements as to characteristics of the prisoner which can best be judged by seeing or questioning the prisoner in person: [86].
The Supreme Court concluded that the requirements of common law procedural fairness were not satisfied in the cases of the three appellants: [97-100]. Since the Board failed in its common law duty of procedural fairness, it also failed to act compatibly with Article 5(4) of the European Convention on Human Rights: [102-113].
Comment
Osborn changed the practice of the Parole Board. Its Oral Hearing Guidance now reflects more closely the Supreme Court’s principles as to when an oral hearing will be required, and has resulted in a greater number of cases being referred for an oral hearing. Osborn has undoubtedly resulted in better release decisions, made in manner which is more procedurally fair.
Osborn has had wider significance for procedural fairness in the prison law context. It has been applied, for example, to require (in certain cases) an oral hearing in respect of decisions affecting a prisoner’s: security classification (R (Hassett) v Secretary of State for Justice [2017] EWCA Civ 331), segregation (R (Bourgass) v Secretary of State for Justice [2015] UKSC 54), and placement in small-group isolation (R (De Silva) v Secretary of State for Justice [2025] EWHC 128 (Admin)). More generally, the Supreme Court’s emphatic affirmation of the importance of common law procedural fairness has resonated across a range of public law contexts.
Sir Stephen Sedley once wrote that “for an age the courts [in the United Kingdom] were either afraid or unwilling to take responsibility for the protection of citizens behind bars from unlawful treatment” (Prison Law, Stephen Livingstone and Tim Owen, OUP, 1993). The decision of the Supreme Court in Osborn is an important milestone in the retreat from that position. It stands as a salutary reminder of the fundamental importance of procedural fairness, and of the essential obligation that the law treat its subjects with dignity.
Matrix members
For the First and Second Appellants: Hugh Southey KC