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Osborn Revisited – Adam still gets to argue his case…

Almost a decade ago, the Supreme Court handed down a landmark judgment in a case called Osborn, Booth and Reilly. The judgment is a masterclass of legal writing. It has an accessible summary at the beginning, a clear exposition of the issues and a compelling explanation of the reasons for the judges’ decision. It is about procedural fairness and why, when something very important is at stake, the opportunity to be heard is fundamental.

One of the most memorable passages quotes from a 250-year-old judgment:

“The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man, upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence.”

Lord Reed explains that “the point of the dictum… is that Adam was allowed a hearing notwithstanding that God, being omniscient, did not require to hear him in order to improve the quality of His decision-making.”

The Osborn judgment enhanced the rights of prisoners to have an oral hearing in parole proceedings. It threw a metaphorical grenade under the Parole Board, necessitating significant changes to its procedures and resourcing to enable it to deliver thousands more oral hearings for prisoners. It has managed this reasonably well in the subsequent decade, but it is evident that there is still some appetite to row back on Osborn and to restrict the rights of prisoners to argue their case at an oral hearing.

One of our clients, who is serving a life sentence, recently found himself at the heart of an attempt by the Parole Board to revisit Osborn. He had been refused an oral hearing by two separate Parole Board Members and the Board had rejected a formal request for this decision to be reversed. A judicial review was issued at the High Court on his behalf.

Whilst not seeking his release, our client wanted the Parole Board to consider his application for transfer to open conditions and to investigate whether the risk areas which had been identified for him were appropriate and accurate. His parole reports included allegations which he disputed and which were being relied upon as evidence of risky behaviour.

The Parole Board claimed that they would take a neutral position in the proceedings. However, a close reading of their Detailed Grounds of Defence revealed a ‘Trojan horse’ style attempt to change the law.

They stated that they were seeking ‘advice’ from the Court on two issues:

i) Whether Article 5(4) of the European Convention on Human Rights is engaged where it is neither party's case that the prisoner should be released.

ii) The circumstances in which fairness requires the Board to hold an oral hearing where it is neither party's case that the prisoner should be released.

We concluded that this was an attempt by the Parole Board to relitigate Osborn. This was a concerning development and we wanted to ensure that we were well-armed to protect against this.

Our team (Yasmin Karabasic and Andrew Sperling and counsel Michael Bimmler from No.5 chambers) was joined by Jude Bunting KC. We tried to dissuade the Parole Board from using our client’s case opportunistically to try to undermine Osborn. We explained that the issues they were asking for the Court’s advice on had been answered definitively by the Supreme Court already. They did not agree.

We were pleased and relieved that the court upheld our client’s claim and were dismissive of the position the Parole Board had adopted.

It was held that the case of Osborn provided adequate guidance for the Board in this case and that it was wrong that the unlikelihood of release was determinative of the refusal of an oral hearing. Mrs Justice Foster also observed that generally there is a presumption for oral-hearings in the case of post-tariff prisoners:

“Put otherwise, a good reason for not holding a hearing should be present when a refusal is made in the case of a post-tariff lifer, for whom the issues of insight, behaviour and risk (at least) are central to progress, and are almost certainly best examined and understood in the open forum of an oral hearing. The obligation to consider the prisoner’s position falls upon the Board, it is not dependent upon the prisoner, and it does, as the court in Osborn recognised, engage Article 5(4).”

Article originally posted on LinkedIn on 12 Sep 2023:


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