High Court Orders Parole Board to Reconsider Decision in McKilligan Case, Emphasizing Need for Oral Hearings for Post-Tariff Lifer Prisoners

Introduction

In the recent judicial decision in the case of Dominic McKilligan v Parole Board for England and Wales, the High Court of Justice has once again visited the terrain of parole hearings involving post-tariff lifer prisoners. Under the astute judgment of Her Honour Judge Belcher, several key topics central to parole board reviews and the rights of prisoners were brought to the fore. This article provides an analysis of the case, elucidating the legal principles applied and their direct implication on the outcome of the case.

Key Facts

In the case at hand, Dominic McKilligan, a lifer over two decades into his sentence for murder and currently detained at HMP Frankland, contested the Parole Board’s decision to refuse his request for an oral hearing. This denial was pursuant to the parole board reviewing his continued suitability for release. McKilligan’s claim was grounded on the assertion that the Parole Board failed to properly consider the principles set forth in the landmark case R (Osborn, Booth and Reilly) v Parole Board for England and Wales ([2013] UKSC 61), commonly referred to as Osborn.

The claimant was notably beyond his set tariff by four years and nine months and had been earmarked for potential progression through the Kaizen Programme, only to be deemed unsuitable. This ‘stagnation’ in his case led to the claim that there were clear disputes over fact and risk levels, which were not adequately addressed by a paper review alone.

Legal Principals

The court applied several legal principles drawn predominantly from Osborn, which holds that the Parole Board must hold an oral hearing before determining an application for release or transfer to open conditions if that is required for procedural fairness. The decision explored the themes of disputes over facts, independent assessment of risk, the necessity for a face-to-face encounter, and the fairness of ‘paper’ decisions made by single-member panels.

Her Honour Judge Belcher meticulously underscored various aspects in which the initial decision of the Parole Board had fallen short of fulfilling the Osborn principles. These included whether fairness to the offender called for an oral hearing, whether the dossier presented to the parole board was accurate and complete, and whether it had unlawfully omitted expert recommendations, as per the Bailey and Morris ([2023] EWHC 555 (Admin)) findings.

The judgment acknowledged the particular importance of the Claimant’s significant period post-tariff and recognised the stagnation in his progress and psychological assessments, which potentially exerted undue influence on the outcome. Moreover, the legal framework within which practitioners offer recommendations — a practice halted by the then-current Parole Board Rules and guidance — was deemed to affect the board’s decision unjustly in light of Bailey and Morris.

Outcomes

The outcome of the case rests on the directive that the Parole Board reconsider the case, providing an oral hearing as opposed to a paper review. Her Honour not only quashed the previous decision refusing Mr. McKilligan an oral hearing but also emphasized the requirement for such a hearing to be conducted to ensure fairness and proper assessment of the factors relevant to the Claimant’s parole review.

Conclusion

The court’s decision in Dominic McKilligan v Parole Board for England and Wales reinforces the protective measures put in place by the jurisprudence developed in Osborn and subsequent cases. The ruling acknowledges the profound impact stagnation can have on prisoners post-tariff and reiterates the necessity of oral hearings when complexities in a case, particularly related to risk assessments and disputed facts, are present. The judgment reasserts that even expert opinions may require cross-examination and testing in a parole context, with the backdrop of the obligation to fulfil procedural fairness under common law and aligned with the European Convention for the Protection of Human Rights and Fundamental Freedoms.