Tahir Malik, R (on the application of) v The Parole Board of England and Wales

1. This judgment follows the hearing of the Claimant’s application for judicial review on 22 August 2025. The Claimant was represented by Mr Carl Buckley of counsel who also provided a skeleton argument.

2. The Defendant was not represented, having indicated at an earlier stage in the proceedings that it adopted a neutral stance in respect of the application for judicial review and simply asked for its summary grounds of response to the claim to stand as its detailed grounds of response.

3. Similarly, the Secretary of State for Justice (“the Interested Party”) adopted a neutral stance and did not file grounds of response. Background

4. The Claimant is a serving prisoner. He was sentenced on 28 July 1994 following his conviction for the murder of a nine year old boy. The Claimant was then aged 17. He was sentenced to be detained at Her Majesty’s Pleasure (with a minimum term of 12 years, less any relevant period spent in custody on remand).

5. The Claimant’s 12 year term expired on 27 November 2005. The Claimant has spent over 30 years in custody.

6. On 14 May 2024, the Defendant reviewed the Claimant’s detention in the usual way. The Claimant’s case was referred to the Defendant by the Interested Party. In its paper decision, the Defendant concluded that, “Although he accepts responsibility for the index offence, and has resided in a range of establishments in the subsequent 30 years, with numerous psychological and psychiatric assessments setting the proposed treatment pathways, he has not completed any appropriate programs, and his risk to the public remains high”. The Defendant therefore decided that it was necessary for the protection of the public that the Claimant was not released. The Defendant noted that the Claimant had not made sufficient progress in addressing his risk to enable a move to open conditions, nor had he engaged with the recommended treatment pathways to address the risk he posed.

7. The Claimant made an application for an oral hearing as the Defendant had decided to conclude the parole review on the papers. On 20 June 2024, the Defendant considered the Claimant’s application for an Oral Hearing (“the impugned decision”) and refused the same. The Claimant’s application for judicial review is brought on the basis that the Defendant’s decision to refuse an oral hearing was procedurally unfair. The Claimant claims the following relief: (1) An Order that the impugned decision be quashed; (2) An Order that the Claimant’s Parole Review is referred back to the original decision maker; (3) An Order that the aforementioned ‘new review’ is to be heard by way of Oral Hearing; (4) A declaration that the Claimant’s rights per Article 5(4) of the ECHR have been violated.

8. On 25 February 2025, permission was granted in respect of all grounds by HHJ Saffman (Sitting in Retirement) as a Judge of the High Court. The Law

9. Parole Board Rule 19 reads:

19. —(1) Where a panel is appointed under rule 5(1) to consider the release of a prisoner, the panel must decide on the papers either that— (a) the prisoner is suitable for release; (b) the prisoner is unsuitable for release, or (c) the case should be directed to an oral hearing. (2) Where a panel has received a request for advice from the Secretary of State concerning whether a prisoner should move to open conditions, the panel must recommend whether— (a) the prisoner is suitable for a move to open conditions, or (b) the prisoner is not suitable for a move to open conditions. (3) Where a panel makes a decision that the case should be directed to an oral hearing under this rule, the panel may at the same time make any directions relating to the oral hearing. (4) Any decision made under paragraph (1)(a) which is eligible for reconsideration under rule 28 is provisional, and becomes final if no application for reconsideration is received within the period specified by that rule. (5) Any decision made under paragraph (1)(a) which is not eligible for reconsideration under rule 28 is final. (6) Any decision made under paragraph (1)(b) is provisional. (7) Where the Board receives a request for advice with respect to any matter referred to it by the Secretary of State, the Board may advise or make a recommendation to the Secretary of State without an oral hearing. (8) The decision or advice of the panel must be recorded in writing with reasons for that decision or advice, and the written record provided to the parties within 14 days of that decision or advice.

10. In determining whether an oral hearing should to be granted, regard must be had to the principles identified in paragraph 2 of R ( Osborn) v Parole Board [2014] AC 1115 : i) In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake. By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged. ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following: a) Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation. b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed. That is likely to be the position in cases where such an assessment may depend upon the view formed by the board (including its members with expertise in psychology or psychiatry) of characteristics of the prisoner which can best be judged by seeing or questioning him in person, or where a psychological assessment produced by the Ministry of Justice is disputed on tenable grounds, or where the board may be materially assisted by hearing evidence, for example from a psychologist or psychiatrist. Cases concerning prisoners who have spent many years in custody are likely to fall into the first of these categories. c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him. d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a “paper” decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner’s future management in prison or on future reviews. iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide. iv) The board should also 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. v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood. vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional. When dealing with cases concerning post-tariff indeterminate sentence prisoners, it should scrutinise ever more anxiously whether the level of risk is unacceptable, the longer the time the prisoner has spent in prison following the expiry of his tariff. vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner. viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense. ix) The board’s decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner’s release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews. x) “Paper” decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate. xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not .

11. In R (on the application of Somers) v The Parole Board EWHC 1160 (Admin), Foster J held:

46. In any event, whether or not the Claimant makes an application to be released or states an intention one way or the other the Defendant has a statutory duty to make a decision as to suitability for release necessarily therefore Article 5(4) is engaged. The likelihood of a release is not relevant when assessing whether or not to hold an oral hearing. Osborn indicates [112] a pre-disposition towards an oral hearing for indeterminate post-tariff prisoners.

54. The need for a hearing to satisfy the entitlement of a prisoner to a fair consideration of his position is the stronger in the case of a post-tariff lifer and the omission to consider this aspect properly or at all is a serious omission by the Board.

55. The Supreme Court in Osborn indicated for a range of prisoners that in cases of doubt a hearing should be afforded. I do not detect in the reasoning of the Board here any doubt in this case. However, in my judgment the reasoning in Osborn which adverts particularly to the position of the post-tariff lifer, is tantamount to articulating a presumption in favour of a hearing in such cases. 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).

12. In R (on the application of McKilligan) v The Parole Board of England Wales [2024] EWHC 336 (Admin) HHJ Judge Belcher (sitting as a Judge of the High Court) drew attention to the danger of holding an ‘outcome focus’ in respect of any oral hearing:

37. The Decision is clearly focused on the possible outcome of an oral hearing. The Decision refers to there being no merit in an oral hearing "..at this stage..", as once the 1:1 work has been concluded an updated Psychological Risk Assessment will be required to determine if further interventions are required, or if there is support for progression. The Member, therefore, concluded "…that directing an oral hearing at this time would be premature". In my judgment this approach fails to address the correct issue as identified in Osborn (per Lord Reed at [29(x)]. The Claimant did not have to demonstrate that the paper decision was wrong, or even that it may have been wrong. The issue is whether an oral hearing was appropriate. By considering, indeed focusing on the potential outcome of an oral hearing, in my judgment the Decision fails to specifically address the relevant issues set out in Osborn. 38…In my judgment no good reason has been put forward by the Parole Board for not holding a hearing in the Claimant's case. The Decision has focused on the outcome and in doing so has failed to address the central fundamental question outlined in Osborn , namely whether fairness called for an oral hearing, and has failed to consider which elements of the Claimant's case might or might not call for an oral hearing, by reference to the guidance give in Osborn.”

13. The Claimant also referred me to R (on the application of David Clarke) v (1) Parole Board for England and Wales and (2) the Secretary of State for Justice [2025] EWHC 190 (Admin) - a recent decision of Fordham J. In Clarke , Fordham J also had to decide the single issue of whether fairness required an oral hearing in that case. He reviewed the guidance in Osborn . He noted that: “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”. The board cannot use “a realistic prospect of success” as a precondition for granting an oral hearing. The Grounds and Assessment of the Evidence

16. I do not propose to set out all of the evidence which I read - it is not necessary to do so. I read all the evidence contained in the bundle, including the parole board dossier leading to the original decision of 14 May 2024, the representations made to the parole board on behalf of the Claimant, in addition to the judicial review claim documents.

17. The Defendant relies upon its summary grounds of response. As the Defendant is acting as a tribunal when making decisions about the release of prisoners, it remained neutral and did not assert a positive case. The Interested Party in correspondence dated 18 September 2024 also stated its neutrality and therefore did not file any grounds of response.

18. A number of grounds were set out by the Claimant asserting that the Defendant reached a decision using a procedurally unfair process because: (1) The Defendant makes no reference in the impugned decision to the Osborn case and makes no reference to the criteria set out within it. It is wholly unclear therefore whether the Defendant applied the Osborn criteria and, if it did, why the Defendant considered that the Claimant’s application did not satisfy the relevant criteria. (2) The Defendant adopted an outcome focus when it decided that the written evidence needed no “further exploration”. (3) The Defendant appeared to have approached the question of whether an oral hearing was needed from the perspective of what benefit, if any, the Defendant would get from listing an oral hearing, stating it was not the role of the parole board to become “involved in sentence planning, and so this is not a sufficient reason for an oral hearing to be convened”. (4) In those circumstances, the Defendant did not apply the correct test when considering the Claimant’s application.

19. The Claimant set out in its grounds some of its representations made to the parole board before the original decision of 14 May 2024. It is not necessary to set out all of the representations. However, I accept the Claimant’s submission that it is useful to set out some of the representations to provide context to both the original decision to decide the matter on the papers and then the impugned decision to refuse an oral hearing.

20. The relevant paragraphs of the representations are as follows: “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.”

21. On 29 June 2024 the Defendant made its decision. The very brief reasons provided for its decision did not engage with most of the representations made in the Claimant’s 9 page submission detailing why it was asserted that an oral hearing was necessary in this case. Despite reference in the Claimant’s submissions to the Osborn case, no reference in the Defendant’s decision was made to that case. I agree with the observations of the judge giving permission that it is wholly unclear from the reasoning provided that Osborn was even considered.

22. It is correct that in the original decision made on the papers, the failure of the Claimant to engage with rehabilitative work during his brief transfer to Long Lartin was noted. However, neither that decision nor the impugned decision gives any consideration as to how the risk posed by the Claimant can be addressed whilst he remains incarcerated. In my judgment, this is an important factor when considering whether an oral hearing is necessary. This is particularly the case where the Claimant is 14 years “post-tariff” and therefore very firmly in the rehabilitative stage of his sentence.

23. A further clear indicator towards the fairness of holding an oral hearing was the circumstance here where the Claimant was previously on a pathway towards rehabilitative treatment. I accept that sentence planning is not a part of the board’s role. However, in this case, beyond noting some poor engagement by the Claimant, there was no real consideration or analysis of how and why the previous treatment pathway for the Claimant had failed. Further, there appeared to be no consideration of how his risk could be managed or treated moving forward.

24. It is wholly unclear from both decisions how the Claimant’s risk will now be addressed. I accept the Claimant’s submission that in reality, the only realistic means of assessing the ongoing risk was through oral evidence at an oral hearing when that evidence could be considered in detail and analysed. Given the Claimant’s failure to manage treatment since the last hearing, I accept the Claimant’s submission that the treatment options available to the Claimant are now unclear.

25. In addition, further factors indicative of fairness in holding an oral hearing were the comments made by the community offender manager and the prison offender manager, namely the suggestion that there may be a positive outcome if the Claimant was rereferred to the Fens unit, and the potential impact of an updated psychological assessment. There appears to have been an assumption by the parole board that the Claimant’s psychological situation was static, despite the evidence presented to them of change to the formulations for the diagnosis of psychological problems, particularly in circumstances where there appears to be ongoing ambiguity about the Claimant’s IQ level following observations of professionals.

26. Further, I accept the Claimant’s submission that if treatment at the Fens unit is not possible at present, no other treatment option has been suggested and his route to rehabilitation may be considered to be non-existent. In those circumstances, those factors gave a clear indication that fairness required an oral hearing to enable the Claimant to understand why he is not suitable for treatment which may reduce his risk to the public thus increasing the likely prospect of a successful application for parole.

27. It appears that the Defendant in this case has focused on the likely outcome of any oral hearing and has thus applied the wrong test. The Claimant had identified various issues which, in my judgment, justified an oral hearing. Those issues were not peripheral. The Claimant wished to challenge or examine further evidence relating to his psychological position and indeed sought a further psychological assessment. The Claimant wanted to explore treatment options and why the previous treatment pathway was not successful. The reasons for refusing an oral hearing did not deal with why those identified issues did not establish that fairness required an oral hearing.

28. Despite the fact that the Claimant is 14 years post-tariff, there is no indication that the Claimant’s wish to take part in an oral hearing was considered. I accept the Claimant’s submission that Article 5(4) of the European Convention on Human Rights was engaged and that the holding of an oral hearing would fulfil the Defendant’s obligations where such a hearing was required. I also accept that if the Defendant is found to have unlawfully failed to consider the Claimant’s case by way of oral hearing, it will also have violated the Claimant’s rights pursuant to Article 5(4) of the Convention. Conclusion

29. For the reasons set out above, I find that the Defendant did unlawfully fail to consider the Claimant’s case by way of oral hearing. As a result, that failure also amounts to a violation of the Claimant’s rights pursuant to Article 5(4) of the Convention. The claim for judicial review succeeds and the decision of the parole board not to hold an oral hearing is quashed. The parole board is directed to list an oral hearing before the original decision maker(s) in the Claimant’s case. Further, I declare that the Claimant’s rights pursuant to Article 5(4) of the Convention have been breached. Whilst the Claimant originally claimed costs, I record that no claim for costs was pursued given the neutral stance adopted by both the Defendant and the Interested Party.