The Parole Board for England and Wales

 

[2024] PBRA 249

 

 

 

Application for Reconsideration by the Secretary of State for Justice

in the case of Roberts

 

Application

 

1.   This is an application by the Secretary of State for Justice (the Applicant) for reconsideration of a decision of an oral hearing panel (OHP) dated the 6 November 2024. The decision was to direct release of Roberts (the Respondent).

 

2.   Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (the Parole Board Rules) provides that applications for reconsideration may be made in eligible cases (as set out in rule 28(2)) either on the basis (a) that the decision contains an error of law, (b) that it is irrational and/or (c) that it is procedurally unfair. This is an eligible case, and the application was made in time.

 

3.   I have considered the application on the papers. These are the dossier now consisting of 581 pages, the application for reconsideration drafted on behalf of the Applicant, the response by the Respondent’s legal adviser, the decision of the OHP, and an email from the Applicant relating to time limits.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 2 December 2024.

 

5.   The grounds for seeking a reconsideration are set out below.

 

6.   I asked for further particulars relating to the issue of time limits. A further email was received by the Parole Board.

 

Background

 

7.   The background to this matter is set out below.

 

Current parole review

 

8.   The panel hearing took place on 18 October 2024. The panel consisted of a judicial chair, a psychiatrist member and an independent member. The panel considered a dossier consisting then of 553 pages. Evidence was given by a prison offender manager (POM), a prison instructed psychiatrist, and the community offender manager (COM). The Respondent gave evidence. The Respondent was legally represented. The reference from the Secretary of State invited the board to consider whether the Respondent should be subject to a direction for release.

 

The Relevant Law

 

9.   The panel correctly sets out in its decision letter dated 6 November 2024 the test for release.

 

Parole Board Rules 2019 (as amended)

 

10.Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. Decisions concerning whether the prisoner is or is not suitable for release on licence are eligible for reconsideration whether made by a paper panel (rule 19(1)(a) or (b)) or by an oral hearing panel after an oral hearing (rule 25(1)) or by an oral hearing panel which makes the decision on the papers (rule 21(7)). Decisions concerning the termination, amendment, or dismissal of an IPP licence are also eligible for reconsideration (rule 31(6) or rule 31(6A)).

11.Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These are indeterminate sentences (rule 28(2)(a)), extended sentences (rule 28(2)(b)), certain types of determinate sentence subject to initial release by the Parole Board (rule 28(2)(c)) and serious terrorism sentences (rule 28(2)(d)).

 

Irrationality

 

12.The power of the courts to interfere with a decision of a competent tribunal on the ground of irrationality was defined in Associated Provincial Houses ltd -v- Wednesbury Corporation 1948 1 KB 223 by Lord Greene in these words: “if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere”. The same test applies to a reconsideration panel when determining an application on the basis of irrationality.

 

13.In R(DSD and others) -v- the Parole Board 2018 EWHC 694 (Admin) a Divisional Court applied this test to Parole Board hearings in these words at para 116: “the issue is whether the release decision was so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”

 

14.In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) Saini J set out what he described as a more nuanced approach in modern public law which was “to test the decision maker’s ultimate conclusion against the evidence before it and to ask whether the conclusion can (with due deference and with regard to the panel’s expertise) be safely justified on the basis of that evidence, particularly in a context where anxious scrutiny needs to be applied”. This test was adopted by a Divisional Court in the case of R(on the application of the Secretary of State for Justice) -v- the Parole Board 2022 EWHC 1282(Admin).

 

15.As was made clear by Saini J this is not a different test to the Wednesbury test. The interpretation of and application of the Wednesbury test in parole hearings as explained in DSD was binding on Saini J.

 

16.It follows from those principles that in considering an application for reconsideration the reconsideration panel will not substitute its view of the evidence for that of the panel who heard the witnesses.

 

17.Further while the views of the professional witnesses must be properly considered by a panel deciding on release, the panel is not bound to accept their assessment. The panel must however make clear in its reasons why it is disagreeing with the assessment of the witnesses.

Procedural unfairness

 

18. Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed, or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision.

 

19. In summary, an Applicant seeking to complain of procedural unfairness under rule 28 must satisfy me that either:

 

(a)         express procedures laid down by law were not followed in the making of the relevant decision;

(b)        they were not given a fair hearing;

(c)         they were not properly informed of the case against them;

(d)        they were prevented from putting their case properly;

(e)         the panel did not properly record the reasons for any findings or conclusion; and/or

(f)          the panel was not impartial.

 

20. The overriding objective is to ensure that the Applicant’s case was dealt with justly.

 

Error of law

 

21.An administrative decision is unlawful under the broad heading of illegality if the panel:

a)   misinterprets a legal instrument relevant to the function being performed;

b)   has no legal authority to make the decision;

c)   fails to fulfil a legal duty;

d)   exercises discretionary power for an extraneous purpose;

e)   takes into account irrelevant considerations or fails to take account of relevant considerations; and/or

f)    improperly delegates decision-making power.

 

22.The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power.

 

Other

 

23.In Oyston [2000] PLR 45, at paragraph 47 Lord Bingham said: “It seems to me generally desirable that the Board should identify in broad terms the matters judged by the Board as pointing towards and against a continuing risk of offending and the Board's reasons for striking the balance that it does. Needless to say, the letter should summarise the considerations which have in fact led to the final decision. It would be wrong to prescribe any standard form of Decision Letter and it would be wrong to require elaborate or impeccable standards of draftsmanship."

 

Reconsideration as a discretionary remedy

 

24.Reconsideration is a discretionary remedy. That means that, even if an error of law, irrationality, or procedural unfairness is established, the Reconsideration Member considering the case is not obliged to direct reconsideration of the panel’s decision. The Reconsideration Member can decline to make such a direction having taken into account the particular circumstances of the case, the potential for a different decision to be reached by a new panel, and any delay caused by a grant of reconsideration. That discretion must of course be exercised in a way which is fair to both parties.

 

The reply on behalf of the Respondent

 

25.The responses on behalf of the Respondent are set out below.

 

Background

 

26.Before addressing the merits of the application in this case I set out some of the detail of the background to the index offences.

 

27.The panel hearing relating to this application took place in 2024. For convenience I refer to that panel as the 2024 panel. There was an earlier panel hearing in 2023 and again, for convenience, I refer to that panel as the 2023 panel.

Offending

 

28.The Respondent was born in 1954 and is now 70. In 1969, when the Respondent was 14, he broke into the home of a 73-year-old widow. He attacked the victim with a large knife, causing her death. He ransacked the house and reportedly stole money. He was convicted of murder and received a sentence of life imprisonment. The Respondent’s account of this offence, at the Parole Board hearing in 2024, was that this first murder occurred in circumstances where he was responding to being pushed by the victim. The victim had apparently become angry because he had broken an axe (which he was using to chop wood on her behalf). He told the panel that he stabbed the victim because of the way that he was being treated (the angry response) had reminded him of a way that he had been abused as a child.

 

29.The Respondent then spent his custodial time in detention at various young offender institutions. He was eventually released on licence in 1976.

 

30.The Respondent, in the community, apparently behaved well on licence, to the extent that in 1981 the supervision element of his licence was lifted. However the 2024 panel indicated in their decision that the records appear to show that the Respondent had ongoing difficulties, arising from his childhood, which had developed into psychological psychopathy and which may have led to the second murder committed by the Respondent in 1986.

 

31.That murder occurred in circumstances where the Respondent had a dispute with a female hotel owner. The victim was 67. The Respondent indicated that the victim had made unpleasant comments and remarks which led to him reacting violently. He stabbed the victim in the neck and strangled her with a scarf. He tied a plastic bag over her head and bound her hands and feet. There were also injuries consistent with being stamped on. Her home was ransacked and the Respondent drove away with her car. The Respondent was arrested and initially laid the blame upon others, but over time accepted his responsibility. He was convicted of murder and sentenced to a second sentence of life imprisonment, the minimum term set by the court being 22 years. At the time of the 2024 hearing he had served 37 years in custody in relation to this second life sentence.

Parole hearings

 

32.The 2024 panel identified various risk factors which had been identified during his time in prison including poor emotional management; feelings of rage, anger and violence; attachment difficulties with partners; being distrustful and being fearful of being hurt and used; expressing limited empathy; having unstable mental health; difficulty in taking the perspective of others; using violence to meet needs; a lack of self-awareness and understanding; and a tendency to blame others for his own actions.

 

33.While in prison, the Respondent spent some years in a specialist unit for those with severe personality difficulties. He also spent time on a specialist psychological unit at a different prison.

 

34.The Respondent went before a panel of the Parole Board in 2019. That panel considered his history in prison and his current presentation and recommended to the Secretary of State that he be moved to an open prison. The Secretary of State accepted the recommendation and, since 2019, he has remained in an open prison. The Respondent therefore came before the 2024 panel having been in the open prison for approximately five years.

 

35.When the Respondent came before the 2023 panel, he had completed a small number of day release opportunities from the open prison, but had not had the opportunity to take overnight releases on temporary licence as would be the norm. His behaviour had been positive, however the 2023 panel noted concerns about openness and honesty with staff, general truthfulness, and the Respondent’s decision to discuss some of his problems with an outside agency (a Buddhist community with whom he had built a relationship) rather than with his probation officer.

 

36.As the 2024 panel noted in its decision, the 2023 panel took the view that a considerable period of further testing was required, and that there remained doubts about the Respondent’s future compliance.

 

37.The 2024 panel therefore clearly had in mind the considerations and comments of the 2023 panel and their concerns about the Respondent’s risk in the community.

 

38.By the time of the 2024 panel hearing, it was noted that the Respondent had undertaken 69 day releases from prison and 10 periods of overnight release, each of those overnight periods being for five days. The Respondent was accommodated at probation approved premises. The prison was specifically directed to provide a detailed schedule of the overnight and day releases undertaken by the Respondent. A document on the dossier indicated that, in total, the Respondent had spent 127 days in the community on various overnight or day releases.

 

39.A psychological risk assessment had been commissioned by the Parole Board from a prison instructed psychologist. That report was dated March 2024 and therefore post dated the 2023 Parole Board hearing. The psychologist took the view that the Respondent had completed all the required risk reduction work that was expected by the prison (technically called core risk reduction work). The psychologist also thought that there had been a suitable period of consolidation of that work. The psychologist indicated that the Respondent had improved in his understanding of the risk of violence associated with his childhood trauma and in understanding his personality difficulties. It was accepted by the psychologist that the Respondent still retained personality traits which would impact upon managing his risk. It was posited that those traits and difficulties would be addressed by the professionals who would manage his risk if he were in the community. The psychologist took the view that he would need to continue to engage with services in the community to continue to consolidate the treatment that he had received in prison. Also noted were concerns that he had a propensity to present himself favourably to maintain his image, which could mask issues, and which would have to be addressed by those professionals with whom he was engaging in the community. This engagement would particularly fall to his COM. The psychologist had applied various psychological measures relating to violent offenders. Having applied those measures the psychologist came to the conclusion that the Respondent would pose a “moderate” risk of violent reoffending, if he were in the community. The assessment also indicated that the risk would not be imminent, and it was likely that there would be observable warning signs to suggest that risk. The psychologist’s professional opinion was that the Respondent could be released into the community, subject to the risk management plan (RMP) which had been suggested. The psychologist had six years’ specialist experience of working with males convicted of violent offences. The Respondent had been stable and had no negative behaviour issues in prison since he had been in the open prison.

 

40.The Respondent’s COM had drafted a RMP. The Respondent would live initially in probation approved accommodation. There had been meetings with a multiagency protection body to plan for accommodation to move into following his stay in probation approved accommodation. There would be supervision from the probation service and from other agencies in the community. The Respondent’s COM supported a direction for release.

 

41.At the conclusion of the 2024 hearing, the panel were addressed by the Applicant’s legal representative. The Applicant’s legal representative indicated that it was the view of the Applicant that the test for release had not been met. The panel was reminded about the concerns about the Respondent’s lack of openness and honesty with professionals, his emotional management difficulties and the fact that the Respondent still appeared to be presenting himself favourably and therefore not being entirely open about areas where he would feel vulnerable. The panel was also reminded about the dangers of the Respondent using impression management and having a belief that “he knew best” which could create a danger of him not engaging appropriately with professionals and therefore elevating risk.

 

42.The legal representative for the Respondent reminded the panel about the period of time that the Respondent had been in an open prison, his good behaviour and the fact that he had undertaken a number of temporary releases including a number of overnight releases. The panel was also reminded that the prison instructed psychologist, the POM and the COM took the view that the Applicant’s risk could be managed in the community and all recommended release.

 

43.In its decision, the 2024 panel indicated that it accepted that no further core risk reduction work was required within the prison environment. It took the view that the Respondent had demonstrated over the last five years of being in the open prison that he was able to consolidate the (risk related behavioural) work that he had undertaken whilst in closed conditions in the prison. The panel having considered all the evidence was satisfied that the Respondent had the internal controls to manage his personality traits and specifically referred to the concerns of the 2023 panel.

 

44.The 2024 panel came to the conclusion that there had been sufficient progress in managing his personality traits and risk generally. The panel also referred to the RMP which it described as being “robust”. The 2024 panel therefore directed the release of the Respondent.

The position of a Parole Board panel and of the Reconsideration Panel

 

45.As noted above, since 2019 Parole Board rules have allowed for applications to be made by either party to a Parole Board hearing for reconsideration of the decision of that panel. A reconsideration involves identical considerations to those applicable to Judicial Review. Prior to the introduction of the reconsideration process all applications for review were heard in the administrative court. Most are now considered by the Parole Board reconsideration panel.

 

46.The role of a panel and of the administrative court in reviewing decisions has been commented upon in a great number of decisions in the past. In R (on the application of Donald Mackay) v Parole Board [2019] EWHC 1178 (Admin) (a case on a point relating to the recording of evidence) the general position was succinctly addressed (paragraph numbering from the decision):

 

“32. The historical, and current role, of the Parole Board is set out in R (Brooke) v Parole Board [2008] 1 WLR 1950 at [43]to [53]. As this is an ex tempore judgment and the role there set out was acknowledged in one of the other cases to which I was referred, R (McIntyre) v The Parole Board [2013] EWHC 1969 Admin, there is no need for me to read out those paragraphs, they are there to be read.

 

“33. It is sufficient to say that the Parole Board now has a judicial function. It must decide whether it is necessary for public protection for the prisoner to be confined. What is necessary for the protection of the public is that the risk of reoffending is at a level which does not outweigh the hardship of keeping the prisoner detained after he has served a term commensurate with his fault. That is to be found at paragraph 53 of R (Brooke) v Parole Board.

 

“34. The Parole Board must ensure that it has a proper record of the hearing...

 

“35. Turning to the role of the Administrative Court in reviewing a decision of the Parole Board. This was recently considered by the Court of Appeal in Browne v The Parole Board of England & Wales [2018] EWCA Civ 2024. In giving the judgment of the court, Coulson LJ reviewed a number of authorities on the test for judicial review in relation to decisions of the Parole Board. Again, I am not going to go through all of the authorities because they all appear in the decision. He referred, at [47], to R (Alvey) v Parole Board [2008] EWHC 311 (Admin) and the judgment given by Stanley Burnton J at [26]. The principle which arises from that extract is that it is not for the court to substitute its own decision for that of the Parole Board. It is they who have the task of weighing up the competing considerations and assessing the risk.

 

“36. Having reviewed the authorities, Coulson LJ, at [51] of Browne v The Parole Board of England & Wales, the court said “The test applied by the Divisional Court in DSD, and in all the other authorities noted above, is whether the decision of the Parole Board could be said to be irrational in accordance with the classic test set out in Associated Provincial Picture Houses v Wednesbury Cooperation [1948] 1 KB 223 at 229.” The only gloss upon that test, which he referred to at [52], is that since the liberty of the claimant is at stake, any challenge must result in the court looking at the decision with anxious scrutiny. At [53] he continued that, apart from that modification, “I can see no basis for this court to depart from the conventional approach to the review of Parole Board decisions. The relatively high threshold of irrationality is appropriate when the Administrative Court is reviewing the decisions of the Parole Board. It properly reflects the Parole Board’s judicial function, its inquisitorial role, its specialist expertise, and the important and complex role that it performs.”.

 

“37. Therefore, there has to be a high threshold for irrationality and that, of course, accommodates the recognition that it is the Parole Board which has the expertise and is entrusted with the judicial function of looking at risk and balancing whether the risk is such that a prisoner should remain beyond what may be called the punitive part of his sentence. The Administrative Court, of course, not having such day-to-day experience, is not really in a position to second guess what the Parole Board should have done, and must not do so.

 

“38. In this case, irrationality is the basis of the challenge. That is to say Wednesbury unreasonableness. Although irrationality and unreasonableness are often used interchangeably, the former is only a facet of the latter; De Smith on Judicial Review 8th Ed para 11.032. Here I am concerned with irrationality and, in particular whether the decision lacks sensible logic or comprehensible justification.”

Time limits

 

47.Although I am considering an application by the Applicant, the Respondent raises in the response an important issue relating to time limits. The Parole Board Rules 2019 (as amended) set out the applicable time limits for applying for reconsideration. Rule 28(3) says that an application “must be made and served on the other party no later than 21 days after the decision”. The Parole Board guidance also makes it clear that any application to extend a period must be made before the time limit expires. In this case, the Applicant concedes that, although the application document was made and sent to the Board before the time limit expired, and therefore available to be served on the Respondent on day 21, it was not in fact served upon the Respondent at the prison until day 22. The Respondent says that the application was therefore out of time.

 

48.Although the Applicant concedes that the application was served out of time, in a subsequent letter the Applicant raises an argument that, because this was a minor administrative error by the Respondent, the application should not fail. Authorities in connection with civil cases are cited. I have dealt below with the issue of time limits; however, despite the decision I have, for completeness, dealt with the merits of the application.

 

Grounds and Discussion

 

Ground 1(a)

 

49.It is submitted, on behalf of the Applicant, that the decision by the OHP either: (i) departed without justification from a previous Panel decision in March 2023 that a “considerable period of further testing” was required before release could be directed; or (ii) erroneously considered that a “considerable period of further testing” had successfully taken place by the time of the hearing in October 2024. In either case, the decision was irrational.

 

The Applicant’s submission

 

50.It is argued that in its decision, the 2024 panel made limited reference to and demonstrated limited engagement with the views of the 2023 panel which had refused to release the Respondent. The earlier panel had concerns about openness and honesty and took the view that a “considerable period of further testing” should take place before the Respondent was released.

 

51.It is argued on behalf of the Applicant that it was “incumbent“ upon the 2024 panel to demonstrate that either a considerable amount of further testing had taken place or to demonstrate why it concluded that no further testing of the Respondent was required.

 

The Respondent’s response

 

52.The Respondent’s legal adviser argues that “It is no part of the parole process that panels are either bound by earlier decisions, or are required to treat previous decisions as the starting point as to the assessment of risk. The Board did not therefore have to make an explicit finding in terms that “a considerable period of further testing” had been completed before directing release.”

 

53.It is further submitted that the 2024 panel did, in fact, take account of the issue raised by the 2023 panel (further testing) at paragraph 2.9 - 2.10 of the OHP decision. It is also further submitted that the actual position was that the Respondent had, in fact, undertaken a number of further periods of overnight and day release since the 2023 decision and (by inference) had therefore undertaken a considerable period of further testing.

 

Ground 1(b)

 

54.The Applicant argues that the 2023 panel had identified a number of issues about the Respondent’s presentation which caused concern, including lack of empathy; a failure to disclose problems; discussing his problems with a Buddhist community (rather than appropriate professionals); alleged untruthfulness; concerns about openness and honesty in the community and concerns about whether he would engage with services. It is submitted that the 2024 panel did not explain how these issues had been resolved and had therefore acted irrationally in failing to address each of these issues.

 

The Respondent’s response

 

55.It is argued that the issue raised by the Applicant, namely the listed and identified concerns raised by the 2023 panel, were matters which the 2024 panel was entitled to give such weight as they thought appropriate, and to then apply the statutory test. The Respondent rejects the notion that the 2024 panel was obliged to address their decision on the basis of the views of the 2023 panel.

 

Discussion

 

56.As indicated above the Applicant’s argument under these grounds relies heavily upon the submission that the panel failed to address the decision of the 2023 Parole Board panel which had considered and reviewed the Respondent’s detention. The Applicant argues that it was “incumbent” upon the panel to address the issues raised by the 2023 panel. Indeed it is also argued that the issues should have been addressed individually, and, by inference, the 2024 panel should have demonstrated why each of the individual concerns of the 2023 panel were said to have been addressed.

 

57.The practice of Parole Board panels, when undertaking risk assessments, is to direct that copies of earlier Parole Board decisions are included in the dossier. Those earlier panel decisions do not, in fact, form part of the list of required documents appended to the Parole Board Rules 2019 (Part A and B of the Schedule). However they are important as they often provide a chronological analysis of the development of a prisoner’s progression through the prison system and will reflect the historical views of professionals and earlier panels as to that progress. This information is also particularly valuable in cases where prisoners have served substantial prison sentences.

 

58.By their very nature individual Parole Board hearings are dynamic. The material and evidence which is presented to a Parole Board panel will be unique to that panel. Inevitably, the longer-term historical analysis is unlikely to change over time, however issues such as behavioural work undertaken, general behaviour in prison, mental health issues, drug and alcohol issues and progress in relation to matters such as temporary leave are all likely to progress and change over time.

 

59.It will also be the case that professionals may take a differing view of risk, and that Parole Board panels themselves may also take a differing view of risk. The assessment of risk is a matter of cautious evaluation which involves reflecting upon the available evidence and information, reaching a judgment, and applying the necessary test.

 

60.In these circumstances it is clear that the decision of a previous Parole Board panel cannot be binding upon a subsequent panel. Each Parole Board panel addresses the current information and evidence presented to it by the Secretary of State with a fresh eye and possibly with a fresh approach. This does not however mean that the views of those who have considered the prisoner’s background in the past, whether it be professionals or Parole Board panels, will be ignored. The essence of a Parole Board hearing is that the panel must ensure that it takes account of all the evidence and information that is presented at the hearing and that is available to consider, this includes previous assessments and decisions.

 

61.Parole Board Panels (as is often noted) are not bound by the views or opinions of professionals. In a similar vein panels are not bound by the views of their predecessors, who will have considered the material before them at any particular point in time. For this reason, I reject the proposition by the Applicant that it was “incumbent” upon the 2024 panel to review issues raised by the 2023 panel and to address each of those issues.

 

62.In fact the 2024 panel, in its decision, made reference to the views of the 2023 panel. It did not list each of the individual concerns and address each one individually, however, the 2024 panel did, in its concluding paragraph, specifically indicate that it had taken into account the issues raised by the 2023 panel in reaching its conclusion. It indicated that it was satisfied that the Respondent had addressed the issues which the 2023 panel “found lacking“.

 

63.I therefore reject the proposition that the 2024 panel were bound by the views of the 2023 panel or that they (the 2024 panel) ignored the matters raised by the 2023 panel. I therefore determine that the 2024 panel did not act irrationally, in the sense set out above.

 

 

 

Considerable period of further testing

 

Discussion

 

64.As noted above, the Applicant argues that the 2024 panel failed to address the issue raised by the 2023 panel, namely that there should be a “considerable period of further testing” before the Respondent is considered for release. The 2023 panel also indicated that they could not place a “timeline” on the further testing. The comment made by the 2023 panel was a generalised view. The 2023 panel did not offer any specific suggested behavioural work, save suggesting in general terms that the Respondent should spend more periods of time in the community. The comment therefore begs the question as to how long would have been the appropriate time?

 

65.The 2024 panel indicated that the Respondent “has now been in open conditions for five years, has shown improved emotional regulation and had successfully undertaken a very large number of releases on temporary licence without incidents of significant concern. He is now able to manage his personality traits and the external controls are far more than was previously the case.” The 2024 panel were therefore clearly satisfied that the Respondent had, by the time they came to make an assessment, undertaken sufficient temporary leave and day releases to satisfy them that the Respondent’s risk could be safely managed. This was a matter for this panel to assess and weigh. I am not therefore persuaded that the decision of the 2024 panel could be considered irrational in the meaning set out above. There is a high threshold for irrationality to engage, as mentioned above, and I am not satisfied that the arguments adduced by the Applicant meet that threshold.

 

Ground 2

 

66.The Applicant submits that the 2024 Panel further erred in concluding that the Respondent could be safely managed in the community based upon their assessment of his internal controls and the RMP. Release should not have been directed in circumstance where it remained necessary for the protection of the public that he be confined.

 

The Applicant’s submission

 

67.It is argued by the Applicant that insufficient weight was placed upon the nature of the index offending. It is also argued that the Respondent’s ability to use “impression management” had not been sufficiently tested and that further time was required to test the Respondent’s risk. To the extent that the Panel failed to properly apply the test for release, it erred in law. To the extent that it found that the test was satisfied, its decision was irrational.

 

The Respondent’s response

 

68.The Respondent argues that the panel gave such weight as they thought appropriate to the issues cited by the Applicant in the second ground of the application (above). It is further submitted that the Applicant’s argument, that the panel made an error of law by failing to recognise that the Respondent “must remain in detention as he represents a real risk to the public“, was in fact a reformulation of the argument supporting irrationality, namely the Applicant was simply arguing that the panel acted irrationally in directing release.

 

69.The Respondent also indicates, generally, that the Applicant's submission amounts to an argument that the reconsideration application should be a “full merits review“ of the decision which would amount to a first instance reassessment of the component part of the risk assessment and decision. As was indicated by Coulson LJ in Browne v Parole Board [2018] EWCA Civ 2024 this would not be a lawful approach.

 

Discussion

 

70.The Applicant argues that the panel had failed to take proper account of the facts of the index offences and the fact that the Respondent had committed exceptionally serious offences leading to the death of two victims during his lifetime.

 

71.Also argued is that the 2024 panel failed to take proper account of the fact that the Respondent was thought by psychologists to deploy “impression management” rather than openness and honesty in his dealings with professionals.

 

72.The Applicant argues again that there should be further testing of this aspect of risk.

 

73.This second ground adduced by the Applicant appears to me to be closely allied to the first ground. In essence, the argument is that the panel failed to make an appropriate assessment of the risk potentially posed by the Respondent and therefore were irrational in making a decision to direct release. This argument in my determination amounts to a submission that I, as the reconsideration panel, should second-guess the oral hearing panel, reassess the evidence, and reach my own conclusion on the facts. That would not be an appropriate approach.

 

74.The 2024 OHP had the advantage of an extensive and up to date dossier, reports and other materials. They also had the advantage of seeing and hearing the Respondent as well as the witnesses, including a prison instructed psychologist. It was plainly a matter for the panel to determine which opinions and evidence they preferred.

 

75.Provided the reasons given are soundly based on evidence, as well as rational and reasonable, or at least not so outrageous in the sense set out above, it would be improper to intervene in the panel’s decision. This was a case where the panel’s decision was supported by recommendations from the professional witnesses, all of whom had reported in detail in advance of the hearing.

 

76.Where a panel arrives at a conclusion exercising its judgement based on the evidence before it and having regard to the fact that they saw and heard the witnesses. It would be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision of the panel. The reconsideration mechanism is not a process whereby the judgement of a panel when assessing risk can be lightly interfered with. Nor is it a mechanism where I should be expected to substitute my view of the facts as found by the panel unless of course it is manifestly obvious that there was irrationality of an obvious and egregious nature which can be shown to have directly contributed to the conclusion arrived at the panel.

 

77.In all the circumstances therefore I do not find that the panel’s decision in this case was irrational or procedurally unfair in the sense set out above.

 

Time Limits

 

78.As indicated above, the Respondent in this case, argues that the application for reconsideration should fail because it was made in time but served out of time. The Applicant concedes that as a result of an administrative error, the application was not served within the 21 day time limit. The Applicant argues that the breach was not serious, nor significant, and that the Respondent had not been prejudiced by the error.

 

Discussion

 

79.The authorities cited by the Applicant in support of a waiver of the Rules relate to civil proceedings, or circumstances where the other party has conceded that no prejudice occurred. In this case the issue is significant as it goes to the liberty of the Respondent. The Parole Board Rules are clear and unambiguous that both making and service in time are required, the status of the Respondent as a lawfully detained person was affected and changed by the effluxion of time. At the end of the 21 day period the Board becomes functus officio by operation of law, it has no inherent jurisdiction to continue with any proceedings at this point. I am therefore not persuaded that in this case the Board has the power to waive the time limit and if it had the power it would not, in my determination be an appropriate use of such a power in the light of the issue of liberty of the subject being engaged. For this reason I find that the application was out of time, and I decline the invitation to waive the time limit. However as noted above, I have considered the merits of the application, in any event, and find that had the application for reconsideration been in time, it would have been dismissed.

 

Decision

 

80.For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused.

 

 

 

HH S Dawson

19 December 2024