R (on the application of Smith and West) v Parole Board1 concerned two prisoners who, after serving their minimum sentences and qualifying under section 39(2) of the Criminal Justice Act were released on parole, only to be recalled after breaking their licence conditions. Both appellants made written representations as to why the decision to revoke their licences should be reconsidered but neither made a request for an oral hearing.
However, after the Board's decision to not to recommend their re-release, they sought appeal on the ground that they had not been given oral hearings contrary to Articles 5 and 6 of the European Convention on Human Rights. It was decided in both instances that the Parole Board had not acted procedurally fair, and the appeals were allowed. I will aim in this report to critically evaluate the decision, including the reasoning, and examine the importance and significance of the case to administrative law.
The idea that we are entitled to a fair hearing under procedural fairness comes from the common law rule of natural justice audi alteram partem. For there to be a fair hearing an assumption is made that there must be three rights afforded by the individuals concerned; that is: sufficient notice (allowing adequate preparation), entitlement to know the evidence against you and proper opportunity to contest, correct or contradict any such evidence2. Although ordinary in writing, there may, as this case demonstrates, sometimes be a duty to hold an oral hearing.
It was once thought that only the courts had to comply with the rules of natural justice. However, Cooper v Wandsworth Board of Works3 was one of the first cases to recognise that natural justice also applied to administrative decisions and this has since been confirmed by the landmark case of Ridge v Baldwin4. It has also been accepted that the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry and the subject matter which is being dealt with5. The courts therefore tend to adopt a "sliding scale" case by case approach, in which different levels of procedural fairness are afforded.
This case therefore questioned whether or not the applicants were entitled to a higher degree of procedural fairness than is usually considered adequate in the form of an oral hearing due to the nature of the case (possible breach of human rights under the European Convention of Human Rights). The Parole Board has long accepted that they had a public law duty to act in a procedurally fair manner, but the question which inevitably stemmed from this was what did fairness in this context require? We must firstly consider when an oral hearing will be afforded under the common law.
An important point concluded from this case is the fact that there is no absolute rule that there is to be an oral hearing automatically in every case6. This confirmed the current common law, and the position which the courts seem keen to uphold. It did however suggest that an oral hearing would be required if perhaps more information is required and written representations would not suffice. This is of key importance because before this the position was that there should only be an oral hearing if there was a dispute on facts.
The common law regarding this area of procedural fairness has been developing since the landmark case of R v Secretary of the State for the Home Department ex parte Doody7, in which the law was changed in relation to prisoners who had been given extended sentences. This case changed the procedure for life prisoners, as it required them to be given an oral hearing. Not only this, but what came from this case was Lord Mustill's analysis which both of the appellants sought to rely upon. From this analysis derived six principles from the authorities in answer to the question "what does fairness require in the present case?
Of which (in my opinion) three are relevant and confirmed by the present case8. Firstly, the second principle stated that the standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type and secondly the third principle which says that what fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects9. Both principles are confirmed in this case as one of the conclusions states that the Parole Board had a duty to adopt a procedure that fairly reflected the interests at stake. .