Affirming the Parole Board’s Discretion to Disregard Withheld Damaging Information

1. Introduction

In Petition of Luke Mitchell for Judicial Review (Court of Session) ([2025] CSOH 19), the Scottish Court of Session (Outer House) considered whether the Parole Board for Scotland acted unfairly in choosing to disregard certain potentially “damaging information” in the course of a parole hearing. The petitioner, Luke Mitchell, challenged the Parole Board’s decision not to direct his release on licence, arguing that the board’s disregard of two un-redacted Serious Offender Liaison Service (“SOLS”) reports, which had been withheld from him under Rule 9 of the Parole Board (Scotland) Rules 2022, prejudiced the fairness of the process.

The petitioner was originally convicted of murder in 2005 and sentenced to life imprisonment. By April 2024, he became eligible for consideration by a parole panel for release on licence. In advance of the hearing, his solicitor was provided with extensive documentation but received only redacted versions of the SOLS reports. Disputing the fairness of the proceeding without the un-redacted reports (or the use of a special advocate to review them on his behalf), the petitioner sought judicial review of the parole decision.

This commentary explores the Court’s detailed examination of parole board procedure, Rule 9’s nondisclosure provisions, and broader questions of fairness and proportionality in parole hearings involving withheld information.

2. Summary of the Judgment

Lady Haldane, presiding in the Outer House of the Court of Session, ultimately refused the petitioner’s request to invalidate (reduce) the Parole Board’s decision. The Court emphasized that:

  • The panel made two distinct decisions on 15 April 2024. First, it decided procedurally to refuse the petitioner’s request to adjourn and appoint a special advocate. Second, it made its substantive determination to refuse release on licence based on all relevant information available (excluding the withheld SOLS reports).
  • The petitioner’s judicial review challenge focused solely on the second, substantive decision. There was no formal challenge to the Board’s refusal to adjourn or appoint a special advocate. Consequently, the lawfulness of the procedural decision could not be revisited in the present proceedings.
  • Because the Parole Board chose not to rely on the un-redacted SOLS reports—and thus did not consider them—it avoided any unfairness that might have arisen from using undisclosed materials.
  • The Court concluded there was no procedural unfairness in the Parole Board’s approach under Rule 9. This finding likewise defeated the convention challenge under Article 5 ECHR. Even if special advocate representation or further disclosure to the petitioner might have been “better” or more complete, that did not by itself render the adopted procedure intrinsically unfair or unlawful.

Consequently, Lady Haldane dismissed the petition, sustaining the Parole Board’s original decision.

3. Analysis

A. Precedents Cited

The Court referenced several important authorities that collectively guide the meaning of “fairness” in parole hearings and the scope of judicial review when withheld or restricted disclosure occurs.

  • Regina v Secretary of State for the Home Department ex parte Doody [1994] 1 AC 531: Cited for the principle that a petitioner must demonstrate actual unfairness, not merely a preferable alternative procedure.
  • Smith v Parole Board [2021] CSOH 83: Reiterated that reviewing courts must assess whether particular procedures were actually unfair rather than lament that a different approach might have been more optimal.
  • Osborn v Parole Board [2014] AC 1115: Clarified core principles of procedural fairness in parole contexts, emphasizing deference to the subject’s dignity, the benefit of better decision-making, and avoidance of a sense of injustice.
  • R(D) v Parole Board for England and Wales [2019] QB 285: Underlined that parole boards are not passive recipients of evidence but bear an inquisitorial duty to test information proactively in assessing risk.
  • O’Leary v Parole Board for Scotland 2022 SLT 623, Ryan v Parole Board for Scotland 2022 SLT 1319: Referenced for the notion of a “360-degree view” of relevant risk factors and a recognition that each parole decision must be taken on its own merits.

B. Legal Reasoning

Central to the Court’s holding is the nature of Rule 9 of the Parole Board (Scotland) Rules 2022, labelled the “Non-disclosure of information” rule, which grants discretion to the Scottish Ministers or the Board to withhold information deemed damaging to the public interest or likely to compromise safety, investigations, or national security, among other specified grounds. Under Rule 9:

  • If withheld information is categorized as “damaging,” the panel must still determine whether that information is material to the case.
  • Where a panel deems the information non-material to its decision or chooses not to rely on it, the hearing may be concluded without reference to the withheld material.
  • Alternatively, if the withheld information might be significant, the panel can consider appointing a special advocate or other mechanisms to ensure procedural fairness.

In this case, the Parole Board concluded that it could decide Mitchell’s parole application entirely by examining other disclosed materials. Thus, there was a conscious choice to set aside and not factor in the un-redacted SOLS reports. The Court found that this approach was not only permissible under Rule 9(5) but was also “the appropriate procedure” once the Board had decided not to appoint a special advocate and not to rely upon the disputed evidence.

The Court further reasoned that once the first, purely procedural decision (to refuse adjournment and appointment of a special advocate) was made, the Board took a lawful course: namely, to disregard the SOLS documents and base its risk assessment on the wealth of other evidence before it. Because the petitioner did not challenge the procedure specifically, the final decision turning on the unchallenged procedure was also upheld.

C. Potential Impact

This judgment reinforces the Parole Board’s discretion to exclude and completely disregard withheld information when it concludes that nondisclosure is necessary, or that the material is not vital to the outcome. While parole boards remain fully responsible for ensuring that each case is considered fairly and thoroughly, it demonstrates that seeking access to “damaging information” does not automatically entitle the prisoner to disclosure or special appellate safeguards.

Future panels may take a similar approach: if they conclude that withheld material will not affect the decision, they remain free to put it aside entirely, thus preventing complications surrounding partial disclosure and special advocates. This approach, however, hinges on the Board’s assessment that there is sufficient alternative evidence to reach a fair and robust conclusion on risk.

4. Complex Concepts Simplified

Below are key legal and procedural concepts explained in simpler terms:

  • Nondisclosure of “Damaging Information”: Under parole rules, some information, if shown to the prisoner, could jeopardize public safety or investigations. That information can be withheld, but a panel must decide whether it is material (essential) to the risk assessment. If it is not material or the panel elects not to use it, the hearing may legally proceed without it.
  • Special Advocate: A lawyer who is allowed to review sensitive materials and represent the prisoner’s interests without revealing the contents to them. Here, the petitioner requested this arrangement but did not formally challenge the Board’s refusal to appoint one.
  • Procedural Fairness: The duty to ensure that a hearing is fair overall. It does not require every piece of information to be disclosed if it is not relied upon. Courts look at whether the proceedings as a whole respect the prisoner’s rights, allow participation, and avoid arbitrary outcomes.
  • Article 5 ECHR: The European Convention right to liberty requires that procedures evaluating continued detention be fair and not arbitrary. Since the Board did not rely on undisclosed material and the existing evidence was sufficient to justify continued detention, there was no breach.
  • Inquisitorial Role of the Parole Board: The Board has active power to gather, test, and evaluate evidence in parole cases. They are not constrained by rules that apply in regular civil or criminal courts. Their main focus is whether the prisoner’s release would threaten public safety.

5. Conclusion

Petition of Luke Mitchell for Judicial Review illuminates how a parole board and reviewing court handle the tension between nondisclosure of sensitive information and fairness in parole proceedings. Despite the petitioner’s advocacy, the Court upheld the Board’s decision to disregard confidential materials, ultimately finding no unfairness or violation of Article 5. The decision clarifies that as long as the parole board can make a fair and adequately reasoned risk assessment on the disclosed evidence, it may exclude and disregard damaging information instead of attempting partial disclosure or invoking special advocates.

In the broader legal landscape, this case underscores:

  • The importance of procedural fairness in parole decisions and the scope of a parole board’s discretion when handling undisclosed or “damaging” material.
  • The principle that not every possible procedural increment—like special advocates—needs to be triggered if the Board legitimately decides the withheld information is not essential to its final determination.
  • The necessity for prisoners and their representatives to focus any judicial review challenge on both the procedural and substantive decisions, should they seek to overturn a final parole decision.

Overall, the case refines the subtle balance between public interest concerns over disclosure and a prisoner’s right to a fair process, affirming that the Parole Board may lawfully choose to disregard withheld documents so long as it has enough alternative evidence from which to reach a fair and reasoned conclusion on risk.