Common law and convention right

The final principle that I believe to be relevant is that which states that fairness will very often require that a person who may be adversely affected but the decision will have an opportunity to make representations on his own behalf, either before the decision is taken… or after it is taken, and finally… fairness will very often require that [the person affected] is informed of the gist of the case which he has to answer10.

There is obvious confirmation of this principle in the case in that the final decision held that it was necessary for the appellants to be given oral hearings to represent their case. Further to the case of Doody, however, was the case of R v Parole Board ex parte Watson11. This was slightly different from that of Doody in that it concerned the right to a full hearing as opposed to the right to an oral hearing. However, it was decided in this case that the requirement for a full hearing for discretionary life prisoners was unnecessary.

This could be considered further confirmation that what will be considered fair will be different in every situation. Perhaps the most relevant to the case in question is that of R v Parole Board ex parte Mansell12 which suggested that offenders who are serving a normal fixed term13 had no right to an oral hearing. According to previous common law rules it would be thought that, with there being so much at stake (ones liberty) there would be a high level of procedural fairness demanded and an oral hearing would be essential.

It is perhaps true to say that this case confirmed the view in Watson, consequently making Smith and West more significant as it instead took the view that oral hearings were necessary, therefore developing administrative law in a different direction. With regards to the common law as a whole, it is clear that the previous case has been that the Parole Board is extremely reluctant to hold oral hearings.

In fact, it was brought to the attention that just one case out of 516 involving determinate sentence prisoners had resulted in the holding of an oral hearing in the year ending March 200214 and, further to this, just four oral hearings were held out of the 1945 cases falling outside the categories of discretionary life prisoners, extended sentence prisoners and Her Majesty's Pleasure detainees from April 1 2003 to 31 October 200415. It could therefore be suggested that this case is one of key importance in that it suggests that the common law test of procedural fairness requires that the board re-examine its approach16.

It recommended new conditions under which an oral hearing should be held which included those cases where the prisoner seeks to challenge the truth or accuracy of the allegations or seeks to provide an explanation for them which was not taken into account. This builds upon the previous view which suggested that there should only be an oral hearing if the facts of the case were in dispute. It is perhaps important to briefly note another significant point of this case is the clear separation of common law and convention right.

The requirement of procedural fairness is part of the common law, but this is not a convention right. It does, however, recognise that the two may often coincide. Much of the case not only focused on whether the Parole Board had breached a common law duty of procedural fairness but also whether they had complied with or otherwise infringed the appellants human rights with regards to the European Convention on Human Rights, as brought into effect by the Human Rights Act 1998.

The case first of all questioned whether there had been a breach of article 5(1) which provides that no one shall be deprived of his liberty save in the following [case] and in accordance with a procedure prescribed by law; (a) the lawful detention of a person after a conviction by a competent court. An important question raised with regards to 5(1) case was whether or not a prisoner released on licence but then recalled was being deprived of his liberty contrary to this article. Lord Bingham expressed the view on this matter that the original conviction and recall were just one order for detention.

However, Lord Slynn dissented from this view and was instead persuaded that this was too restrictive an approach and that recall was actually a new deprivation of liberty. This would allow the appellants to take proceedings under Article 5(4). Although Lord Slynn did decide that this was satisfied, it is perhaps still significant to note in that it developed the idea that there was just one continuing detention order and instead suggested that conviction and recall were too separate formal detention orders17.

Further to the discussion of Article 5(1) followed the consideration of any breach of article 5(4) which provides that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. It was accepted that, for the purpose of revocation proceedings the Parole Board has the essential features of a court18. The question here was therefore whether the proceedings had been conducted in the way a court would be expected to conduct them.

It was held that they were not, and so it followed that there was a breach of the appellant's article 5(4) convention rights19. Another important argument raised by the appellants was whether the revocation hearing was a determination of a criminal charge or, failing in this, a civil determination. If either were true, the appellants would have been guaranteed "certain important rights", that is to say a higher degree of procedural fairness would be required, as it would have invoked either Article 6 (criminal) and Article 6(1) (civil) of the European Convention of Human Rights.

There were two important conclusions drawn from the discussion of this issue. Firstly, the revocation of a licence does not constitute a criminal charge. The reasoning behind this is that a criminal charge is distinguished by its punitive nature. The revocation of a licence, however, is intended to protect the public, not to punish. It is therefore true to say that the two are different. Secondly, the civil limb of Article 6 would not afford any greater protection under procedural fairness20.

This could be criticised in that it would appear that ones civil rights are less important than ones criminal rights. It is also peculiar that, with regards to Article 6 the original conviction and the recall are seen as separate events with separate purposes, whereas with regards to Article 5(1) (as discussed above) they are considered (Lord Slynn dissenting) as one continuing detention order. It could therefore be said to be a very contradictory case, and demonstrates how the courts are prepared to be very flexible with regards to administrative law issues21.

This view has been shared as it has been suggested that the law in relation to right to an oral hearing presents a confused patchwork appearance22. It has therefore also been suggested that it is perhaps time for a statutory code of fair procedure setting out the relevant principles and factors to be considered by a quasi-judicial body in exercising its discretion in deciding whether or not to hold an oral hearing. It is however perhaps sceptical to do so due to the problems it may create if applicants were automatically entitled to an oral hearing.

Although the concept of a compulsory oral hearing in every situation may sound favourable, it isn't without its problems23. For example, everyone has to be assembled together in a suitable venue, notice must be given (hence there are risks of delay), it often increases expense significantly and there is a risk that it would be a mere repetition of what the papers have already said. Lord Hope elaborates on Article 6(1) with discussion of whether the right to liberty is in fact a civil right.

Lord Hope does not dissent from the general judgement as he also concludes that the claimants were not entitled to invoke the additional protection of article 6(1). However, an important point that he mentions in his discussion is how the civil rights of Smith and West could not have been infringed (should they have been entitled to them) because they still had access to domestic courts. To elaborate, ones civil right to liberty cannot be infringed if one has access to domestic courts to assert such a right. This case could also be said to be significant with regards to the Parole Board rules.

Despite Section 32 of the 1991 Act not expressly providing for an oral hearing of the class of the present case, it was nevertheless held that procedural fairness had been breached in not holding oral hearings for Smith and West. It has been suggested that the courts will not step in to change statutory procedures24 but this could therefore lead to criticism of the case as it acts contrary to the Parole Board rules despite the view being confirmed that the 2004 rules were not intended to confer a right to an oral hearing on determinate sentence prisoners25.

To summarise, the case fell most importantly on the discussion of the common law procedural fairness and the rights afforded under Article 5(4) of the European Convention on Human Rights. Having found that the Parole Board did not act as a court would in the circumstances (in effect, did not give an oral hearing) and therefore breaching article 5(4), it lead to conclude that there had consequently been a breach of the common law duty to act with procedural fairness.

The significance of the case to administrative law, in summary, is the way in which it has developed the procedure for determinate sentence prisoners. It raised some important points regarding the definition of deprivation of liberty and whether revocation of a licence was a continuing deprivation or new detention order, thus suggesting that the further article 5(4) would need to be satisfied. The dissenting opinions regarding certain aspects (despite the same conclusion being reached) are a clear indication of how administrative law is constantly developing.