The Parole Board for England and Wales

 

 

[2025] PBRA 76

 

 

 

Application for Reconsideration by Moran

 

Application

 

1.   This is an application by Moran (the Applicant) for reconsideration of a decision of an oral hearing dated 17 March 2025 not to direct release.

 

2.   Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2024) (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 oral hearing decision, the dossier consisting of 501 pages and the application for reconsideration.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 21 March 2025. It has been drafted by legal representatives for the Applicant. It submits that the decision was procedurally unfair and was irrational.

 

5.   The grounds for seeking a reconsideration are that an email and a recent OASys report from the Community Offender Manager (COM) were not considered by the panel and that in the light of the recommendations from the professional witnesses the panel’s decision was irrational. The detailed written submissions will be referenced in the Discussion section below.

 

Background

 

6.   The Applicant received a sentence of imprisonment for public protection on 31 March 2016 following conviction for conspiracy to commit robbery. He also received a concurrent sentence for escape (two and a half years). His tariff was set at 8 years and 236 days and expired on 22 November 2024. 

 

7.   The Applicant was 34 years old at the time of sentencing and is now 43 years old.

 

Current parole review

 

8.   The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in February 2024 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release it was invited to advise the Respondent whether the Applicant should be transferred to open conditions. 

 

9.   The case proceeded to an oral hearing via video-conference on 7 March 2025. The panel consisted of two independent members. It heard oral evidence from the Applicant together with his Prison Offender Manager, COM and an independent psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate.

 

10.The panel did not direct the Applicant’s release but made a recommendation for open conditions.

 

The Relevant Law

 

11.The panel correctly sets out in its decision letter dated 17 March 2025 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions.

 

Parole Board Rules 2019 (as amended)

 

12.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)).

13.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)).

 

14.A decision to recommend or not to recommend a move to open conditions is not eligible for reconsideration under rule 28. This has been confirmed by the decision on the previous reconsideration application in Barclay [2019] PBRA 6.

Irrationality

 

15.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.

 

16.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.”

 

17.In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) 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).

 

18.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.

 

19.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.

 

20.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

 

21. 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.

 

22. 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.

 

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

 

24.Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.

 

The reply on behalf of the Secretary of State

 

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

 

Discussion

 

26.The Applicant’s first ground is based on a submission that the panel did not consider documents added to the dossier after the hearing, which without properly identifying them the application refers to as “a detailed email from the COM and a new OASYS”. It appears that the documents to which the application relate are an undated document headed “Update from COM” signed by the COM who gave evidence at the hearing and an OASys report dated 10/03/2025. There is no evidence that the document described as an “update” is an email, it bears no date or time or recipient details. Although described in the application as “detailed”, it deals shortly with the single issue of the Applicant’s relationship with his partner. The COM’s statement that she will be updating and correcting the OASys, therefore identifies this document as having been produced not later than 10 March 2024.

 

27.The documents were clearly produced after the oral hearing, without a date on the “email” it is not possible to state the earliest date on which the documents could have been added to the dossier. They are dated 3 days after the oral hearing date.

 

28.The application submits that the panel did not read these two documents and makes no reference to them in the decision letter and that this amounts to a procedural irregularity.

 

29.As set out above procedural impropriety means that there was a flaw which renders the result unfair, flawed or unjust in some way. A failure to make reference to a document does not do so. The panel states that it has taken into account all the evidence, it is not necessary to name every document referred to in the dossier considered by the panel. The analysis, considered reasoning or conclusions will give an indication as to whether a document has been overlooked. Nothing in the application points to any aspect of the dossier which was omitted in the panel’s consideration which would have made a difference to the panel’s conclusion. The evidence in the supplementary documentation regarding the Applicant’s partner was raised in the hearing by both the COM and also by the independent psychologist. There was no irregularity in failing to make reference to the documents and this ground must fail.

 

30.The application also submits that the failure to consider the documents, failure to give sufficient reasons for not following the recommendation of professionals, failure to provide sufficient reasons amounts to an irrational decision. The application submits that the panel’s description of the relationship between the Applicant and the COM as in its “infancy”, is irrational. It is further submitted that the conclusion that the Applicant will not be transparent and disclose information is irrational as the Applicant disclosed his relationship with his partner.

 

31.There is no doubt that the decision is carefully, properly and fully reasoned. The application does not identify any particular information in the OASys to which the panel failed to refer or take into account which may have made a difference to the decision. Whilst a failure to consider the document could indicate a failure to take into account the most recent report, it does not do so in this case where the COM, gave evidence to the panel and was therefore available to provide the most recent evidence. The undated “email” states that the OASys document is to be updated to correct information regarding his relationship status. There is no suggestion that there is any more substantive changes from the COM’s previous report (PAROM dated 27/01/2025) or oral evidence and no evidence of irrationality.

 

32.The fact that the Applicant had disclosed his relationship with his partner was not by itself a reason for the panel being obliged to conclude that he could therefore be considered to be transparent and open. The panel had regard to all aspects of the evidence to conclude that transparency and openness were risk factors. The independent psychologist stated that the most likely reason for the Applicant failing to comply with supervision “would be him thinking he knows best and not seeking advice and support”. The evidence supports the panel’s conclusion.

 

33.The COM gave evidence about the nature of the relationship. The Applicant’s representative was able to question the COM and raise any matters of concern. The decision letter records the evidence about the Applicant’s relationship with his partner which was the sole issue raised in the “email” and records the most recent position of the COM regarding risk. The application does not identify anything further that was not considered by the panel.

 

34.The COM reported that she has had responsibility for the Applicant’s case from December 2024 and that there had been limited contact since that date. It is difficult to see what better description the panel could have given the relationship than being in its “infancy”. There is no irrationality in that. Despite the relationship being in its infancy the panel goes on to note that the COM describes the relationship as a positive one.

 

35.Panels of the Parole Board are not obliged to adopt the opinions and recommendations of professional witnesses. It is their responsibility to make their own risk assessments and to evaluate the likely effectiveness of any risk management plan proposed. They must make up their own minds on the totality of the evidence that they hear, including any evidence from the Applicant. They would be failing in their duty to protect the public from serious harm if they failed to do just that. The panel gave reasons for its conclusions setting out nine particular areas of concern and consideration. There was no irrationality in the reasoned conclusion that the Applicant did not meet the test for release. This ground must also fail.

 

Decision

 

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

 

 

 

Barbara Mensah

17 April 2025