“10. If the governing principle, for when fairness requires an oral hearing, entails the prisoner identifying a realistic prospect of their succeeding after the oral hearing with the “outcome” of a release-direction… or transfer-recommendation,,, the Claimant could not succeed.” 14. The judge then noted that that outcome-utility approach to oral hearings had been rejected by the Supreme Court in Osborn as unduly narrow. What fairness required involved a two dimensional shift. The first dimension of that was to consider the practical scope and effect of what the board does in a parole review, which is not limited to the outcome. In addition, the board is obliged to provide full reasons for any decision including detailing any continuing areas of risk that need to be addressed. It may be difficult in conducting that exercise to avoid commenting on specific treatment needs or offending behaviour work required. 15. The second dimension concerns the true ethos of fairness and engages participatory justice, noting at paragraph 14 that “the broader value and rationale was about procedural justice for the person affected, whether or not it would improve the quality of the decision-making”
“8. We are mindful that the case was last considered in 2022 when those instructed invited the panel to conclude this case on the papers, at that point, an appropriate pathway had been developed and it was hoped that in the subsequent months Mr Malik would transfer to HMP Long Lartin which he duly did however, his stay at Long Lartin was short lived and he quickly returned to HMP Wakefield. He continues to remain a Category A prisoner and his position could be seen as inequitable if the view is taken that he is now firmly within the rehabilitative part of his sentence having had his tariff expire nearly 14 years ago with limited success in effective rehabilitation, in part through perhaps his won behaviour but of course rehabilitation is fundamentally there to address those behaviours and traits which have a causal link to the risk of harm to others and may in turn be preventing him from progression within his sentence… 13. We have regard to the comments made by the Community Offender Manager and Prison Offender Manager regarding contact with the Fens Unit and the suggestion that an updated WAIS assessment should be undertaken. This should in our view form a direction as part of the need for an Oral Hearing and an up-to-date psychological risk assessment would also be of value. It cannot be assumed that risk remains the same, there are ambiguities over his IQ assessments and there have been significant changes in formulations in this case over the years, the more recent formulation suggesting personality disorder as being the driver to behaviour beyond concerns in the past regarding mental illness, autism spectrum disorder and learning difficulties. 14. If he is unsuitable for the Fens Plus service then he is left in an invidious position whereby the routes to rehabilitation are all but non existent and his detention without a route towards rehabilitation would become manifestly unfair given that he is in the rehabilitative stage of his sentence. He is detained pursuant to public protection where remains an ongoing preventative detention that exists until he demonstrates that he meets the public protection test for release. 16. Mr Malik’s Category A status also has fundamental implications to availability of rehabilitative frameworks within the prison setting, because he is limited to a number of high security prisons. The likely prospect of Mr Malik being able to engage in group-based work is highly unlikely and therefore alternative pathways must be considered. 17. We are not asking the panel to act in a sentence planning capacity, but it must be considered reasonable to recognise that risk cannot be assessed in isolation of what it takes to reduce risk and parole reviews allow for individuals to understand how their liberty continues to be withheld and it provides them with a vested interest in perhaps understanding the more nuanced issues and areas that need to be addressed for the individual to be progressed along with assisting professionals to do just that.” 18. The level of scrutiny therefore transcends into not just determining whether or not to recommend a prisoner’s release or a transfer to open conditions but includes other aspects of its decisions such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required and which will in practice have a significant impact upon the individual’s management in prison or on future reviews. This was expressly stated in the case of Osborn and Booth (2013). In Mr Malik’s case he has struggled to participate in core risk reduction work and the case warrants the oversight and careful analysis that an Oral Hearing before the Parole Board provides. The Board must also be independent and impartial and guard against any temptation to refuse an Oral Hearing to save time, trouble and expense and should therefore not simply rely upon previous decisions in evaluating the risk. The evaluation of risk is an everchanging task and one that needs to afford a greater degree of scrutiny at this particular time. In the present case oral evidence is needed to ascertain any changes in the risk that he may post, be it lowering or heightening of risk, this is especially true as there are concerns around his behaviour at HMP Long Lartin regarding escape and there have been a number of behavioural concerns since the last parole review.”