The Parole Board for England and Wales

 

[2025] PBRA 71

 

 

Application for Reconsideration by Koselka

 

Application

 

1.   This is an application by Koselka (the Applicant) for reconsideration of a decision dated 5 March 2025 not to terminate the licence imposed upon him in connection with a sentence of imprisonment for public protection (the IPP licence). The decision was made following a paper review.

 

2.   Rule 28(1) of the Parole Board Rules 2019 (as amended) (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.

 

3.   I have considered the application on the papers. These are the decision and the IPP licence termination dossier, consisting of 157 numbered pages.

 

Background

 

4.   The Applicant received a sentence of imprisonment for public protection (IPP) on 23 June 2010 following conviction for robbery.

 

5.   He was first released on 12 February 2015 following an oral hearing but recalled to custody on 16 December 2016.

 

6.   He was released for a second time on 4 August 2017, again following an oral hearing, but recalled to custody on 2 August 2022.

 

7.   He was released on licence for the third time on 25 March 2024, following another oral hearing.

 

8.   The Applicant was 28 years old at the time of sentencing and is now 43 years old.

 

Request for Reconsideration

 

9.   The application for reconsideration is undated and has been drafted by the Applicant. It submits that the decision was procedurally unfair and irrational.

 

10.This submission is supplemented by written arguments to which reference will be made in the Discussion section below. No submissions were made regarding error of law.

 

Current Reference

 

11.The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) on 20 February 2025 under section 31A of the Crime (Sentences) Act 1997 to consider whether or not it would be appropriate to terminate his licence.

 

12.On 5 March 2025, a member dismissed the reference following a paper review.

 

The Relevant Law

 

Crime (Sentences) Act 1997

 

13.Section 31A of the Crime (Sentences) Act 1997 provides the process for consideration of licences by the Parole Board which relate to ‘preventive sentences’ after the ‘qualifying period’ has passed.

 

14.The ‘qualifying period’ is:

 

a)   two years if the prisoner was not at any time in the period of two years beginning with the date of the prisoner’s release serving any preventive sentence in respect of an offence for which the prisoner was convicted when aged 18 or over; otherwise

 

b)   three years beginning with the date of release on licence, regardless of whether the prisoner has subsequently been recalled to prison (section 31A(5) as amended by the Victims and Prisoners Act 2024).

 

15.A ‘preventive sentence’ is a sentence of imprisonment for public protection or a sentence of detention for public protection (including such a sentence of imprisonment or detention in a young offender institution or detention passed as a result of section 219 or 221 of the Armed Forces Act 2006) (section 31A(5) as amended by the Victims and Prisoners Act 2024).

 

16.If a prisoner has been released on licence (regardless of whether they have been subsequently recalled) and the qualifying period has expired, the case must be referred to the Parole Board (section 31A(3) as amended by the Victims and Prisoners Act 2024).

 

17.The Parole Board shall direct the Secretary of State to make an order that the licence is to cease to have effect unless it is satisfied that it is necessary for the protection of the public that the licence should remain in force (section 31A(4)).

 

18.From 1 November 2024, there is a statutory presumption that the Parole Board will direct termination of an IPP licence where it is no longer necessary for the protection of the public. The test is therefore whether, notwithstanding that presumption, it remains necessary for public protection that the Applicant’s licence continues.

 

Parole Board Rules 2019 (as amended)

 

19.Rule 28(1) of the Parole Board Rules provides the types of decision which may be considered for reconsideration, including decisions made in response to a referral by the Secretary of State under section 31A of the 1997 Act (rule 31(6) or rule 31(6A)): specifically, a decision to terminate a licence or a decision to dismiss the Secretary of State’s reference.

 

20.Decisions concerning preventative sentences (as defined in section 31A(5) of the 1997 Act) are eligible for reconsideration under rule 28(2).

 

Irrationality

 

21.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 (CA) 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.

 

22.In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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.”

 

23.In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282(Admin).

 

24.As was made clear by Saini J in Wells, 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.

 

25.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.

 

26.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

 

27.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.

 

28.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; and/or

(e)        the panel was not impartial.

 

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

 

The reply on behalf of the Secretary of State

 

30.The Respondent has submitted no representations in response to this application.

 

Discussion

 

31.The Applicant submits that the decision was both irrational and procedurally unfair.

 

32.It is first argued that it was wrong for the panel to adopt information from a dossier in 2015. The only historic adoption made by the panel was static information about the nature of the index offence. That cannot be outdated.

 

33.The bulk of the Applicant’s submissions deal with an alleged public order incident from December 2024. The termination dossier notes that the Applicant has an outstanding court matter listed to be heard in May 2025. He has reportedly said that he would like his licence termination review to be postponed and if so to have the matter reviewed at an oral hearing.

 

34.The allegation concerns a public order matter said to have taken place outside the school of the Applicant’s stepdaughter. He has been charged. There are also concerns expressed regarding the Applicant’s conduct towards his mother-in-law for which he received a warning from probation. This concerned Facebook posts about his mother-in-law’s relationships with others allegedly convicted of sexual offences. The Applicant is said to have accepted this and explained his conduct as a one-time response to bullying from his mother-in-law. The Applicant feels he has been wrongfully accused and is confident that the court will not convict him.

 

35.The Applicant argues that it is unfair to “use the information against me, without giving me the opportunity to disprove it”.

 

36.I have some sympathy with this position. However, the fact that the Applicant has been charged indicates that there must - in the view of the CPS at least - be sufficient evidence to support a realistic prospect of conviction. This is not evidence of guilt, as the Applicant correctly states, but was correctly of concern to the panel. Even if the matter does not proceed to a conviction, it does not prevent the panel giving it weight in its assessment of risk. The Applicant has had sufficient opportunity to participate and respond to the allegations and provided extensive written submissions to the panel prior to its decision being made giving his view of the disputed facts. The panel has weighed his views against the other evidence in the dossier. That is its job. The panel is also correct to note a number of licence variations surrounding interpersonal relationships which are also indicative of ongoing risks.

 

37.The panel was entitled to conclude that it had sufficient information to determine the core public protection question. While the Applicant disputes several factual assertions, the panel’s reasons suggest it gave those disputes appropriate weight in the context of the broader pattern of behaviour evidenced in the dossier, including his engagement with professionals, social media activity, and the unresolved public order charge.

 

38.It was not unreasonable for the panel to conclude there were evidence-based concerns about the Applicant’s ability to resolve conflict in interpersonal relationships. The test is not whether I would have made the same decision, but whether the decision was irrational — that is, outside the range of reasonable responses to the evidence before it. I am not satisfied that the panel’s conclusion meets that threshold.

 

Decision

 

39.Having carefully reviewed the decision, the dossier, and the Applicant’s representations, I am not satisfied that the panel acted irrationally or procedurally unfairly. While the concerns raised merit careful consideration at any future review, the panel’s decision to refuse to terminate the licence, and not to convene an oral hearing, was, in my judgment, within the range of reasonable outcomes. The application is therefore refused.

 

 

Stefan Fafinski

15 April 2025