“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.”
This 18th century dictum by Mr Justice Fortescue was cited with approval by the Supreme Court in the case of Osborn in 2013 which set out why fairness will very often require an oral hearing where liberty is at stake.
For over a decade, as a result of Osborn, the Parole Board has vastly increased the number of oral hearings it holds to ensure fairness. According to its last annual report, it held 8,531 oral hearings in 2024/2025. Now all that is set to change as a result of changes to the Parole Board Rules, introduced in December 2025.
What are the changes?
A number of changes were made to the Parole Board Rules which govern the core judicial business of the Board. The changes were introduced by The Parole Board (Amendment) Rules 2025 which came into force on 16 December 2025.
Arguably, the change which will affect the most people was the insertion of Rule 19 (1ZA) which states:
“Where a panel considers a case—
(a) concerning a recall of a fixed term prisoner,
(b) where a prisoner is under investigation for a new criminal offence, or has been charged with a new criminal offence, or
(c) where a prisoner has an automatic release date which is imminent, making it impractical to hold a hearing,
the case must not be directed to an oral hearing unless the panel is of the opinion that there are exceptional circumstances to justify an oral hearing.”
The Parole Board has acknowledged that this is a “higher bar” than the Osborn test. The explanatory notes do little to shed much light on the changes. They simply state that paragraph (1ZA):
“…creates a presumption that, where a panel considers on the papers under rule 19 of the Parole Board Rules 2019 relating to the recall of prisoners serving standard determinate sentences, cases where prisoners has [sic] committed a new offence, or cases where a prisoner’s automatic release date is imminent making it impractical to hold an oral hearing, the prisoner is not permitted to apply for an oral hearing to determine their case. However, a panel is able to depart from this starting point and direct that the case should be directed to an oral hearing where there are exceptional circumstances to justify it.”
What is the impact of the change?
The legislation is poorly drafted, so the meaning, and by implication the impact of the Rules, is not entirely clear.
There are three groups who will have to satisfy both the fairness test and a new “exceptional circumstances” test to get an oral hearing now. These are: (a) fixed term recall prisoners (b) a person on any sentence who is under investigation or changed with a new offence and (c) anyone who is due to be released imminently. Working out who falls into each of the groups is not likely to be easy.
Group A
The term “fixed term prisoner” is not defined in the Rules and some practitioners have questioned whether it refers to standard determinate sentences only or also included extended determinate sentences.
The explanatory notes the Statutory Instrument, which the Courts have held may “cast a light” on the meaning of legislation and parliamentary intention where it is unclear, state that (a) applies to standard determinate sentences. This must be correct, as if it were to apply to Extended Determinate Sentences, where individuals may face prolonged periods in prison recall, it would plainly be unlawful and unfair. Those on Extended Sentences are currently excluded from fixed term recalls and will not benefit from the “56 day” recalls to be introduced by the Sentencing Bill 2025 and risk spending a very long further spell in prison – a lot is at stake for this cohort on recall. The Court of Appeal in Sim was clear that Article 5(4) of the European Convention on Human Rights requires a proper review of recalls during the preventative phase of the sentence, where the default position is liberty: it would be difficult to see how a high bar for oral hearings in conducting such a review would satisfy that requirement.
Assuming it does only apply to those on determinate sentences, for anyone who is not subject to a short fixed term recall (currently anyone serving a sentence of 48 months + or serving a sentence for an excluded offence), the new high test for an oral hearing could mean they spend long periods in prison with only the benefit of a paper review.
Group B
It is not clear how one definitively knows when a “prisoner is under investigation for a new criminal offence, or has been charged with a new criminal offence.” While it is clear when a person is charged, the act of investigation is not so clear cut. Prisoners are regularly referred to the police by prisons but that does not mean they are “under investigation” – in fact, the police often return such referrals without investigation. What is a “new” criminal offence? Is it one that has recently come to light or been committed recently or might it include previous offences that a person has only just been charged with? There are extensive backlogs throughout the criminal justice system and it is often the case that charges emerge after many years. Presumably, even though a person who has been charged and then dealt with has technically “been charged”, this provision is not designed to catch such cases. It is also unclear whether any criminal offence counts, or whether there has to be some relevance to the risk of harm. Would a person charged with a traffic offence fall into this group?
It is also of concern that those serving standard determinte sentences but charged with new offences will be excluded from the new 56-day recall process to be introduced by the Sentencing Bill: they will therefore not have the benefit of automatic release but will now also struggle to obtain an oral hearing, even though it is well established by case law and policy that where there is an unproven allegation, this may well need to be thoroughly explored by the Board.
Group C
What is imminent? Parole Board policy already requires that where a person is to be released within 26 weeks, they will not have an oral hearing unless there are exceptional circumstances: yet 26 weeks would not be “imminent” for most people. The term is not defined in the Rules. Further, the it is unclear what would make it “impractical to hold a hearing”: hearings can be convened and dealt with quickly if required.
Secret committee
Given all the questions that arise from these new changes to the threshold for oral hearings, it might have been helpful to know the rationale for them. However, the Committee that oversees the development of the Parole Board Rules is shrouded in secret. Unlike other similar Rules Committees (such as the Tribunal Procedure Committee or the Civil Procedure Rules), the name of its members is kept secret and the meeting minutes are not published.
The Committee is not “owned” by the Parole Board but by the Ministry of Justice. I therefore asked the Ministry of Justice to provide the names of the committee members and minutes of the meetings.
I received a response stating that the names of the committee members had been redacted this information “constitutes personal data”. The response further stated:
“Although section 40 is an absolute exemption, we have considered whether there is a wider public interest in disclosing the personal information that would override the fundamental rights of those involved. In this instance, we have concluded that there is no legitimate interest. The minutes remain clear and comprehensible without disclosing the names of individual Committee members, and releasing this personal information is not necessary to serve any wider public interest.”
The terms of reference, which you can see here, provide that part of the role of the Rules Committee will be to:
“Discuss potential Rule changes – the Committee will work with stakeholders who may be affected to seek views on the impact and how any change might best be delivered in practice to ensure it would be workable (and to avoid unintended consequences).”
It is far from clear how those who represent prisoners (who are very much affected by rule changes) have been consulted.
You can read the “minutes” provided by the initial Freedom of Information Act response, dated March 2024 and November 2024 – the Ministry confirmed that the Committee had not met at all as of July 2025. However, as they are not routinely published, the minutes of the meeting prior to the Rule changes that came into force in December 2025 are not available online. I have made a further FOIA request…
Out of step
The secrecy surrounding the Parole Board Rules is completely out of step with the Parole Board’s transparency drive, which has seen it publicly prioritising the need for its workings to be as open as possible. The Transparency agenda has so far included issuing summaries of cases, holding public hearings, increasing opportunities for victims to observe hearings and announcing a decision to produce “redacted” decisions rather than summaries in some cases. However, much of the workings of the Committee that oversees the Rules that govern their proceedings remains secret.