The Parole Board for England and Wales

 

[2025] PBRA 84

 

 

 

Application for Reconsideration by Walker

 

Application

 

1.   This is an application by Walker (the Applicant) for reconsideration of a decision of an oral hearing panel dated 24 February 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 886 pages and the application for reconsideration.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 1 April 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was procedurally unfair and was irrational.

 

5.   The submission is supplemented by written arguments to which reference will be made in the Discussion section below.

 

Background

 

6.   The Applicant received a sentence of imprisonment for public protection on 12 July 2006 for an offence of robbery to which he pleaded guilty. He was sentenced on the same occasion to 3 months imprisonment for taking a vehicle without the owner’s consent. His tariff was set at one year, 10 months and 4 days. He was also sentenced for driving with excess alcohol, not in accordance with a licence and without insurance, for which he received no separate penalty, but he received obligatory endorsements and disqualification from driving.

 

7.   The Applicant was 24 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 October 2023 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 videoconference. The date of the hearing, whilst recorded on the decision letter as 20 August 2024, may be the date in the application, 24 February 2025. The panel consisted of two independent members and a psychologist member. It heard evidence from the Applicant, together with his Prison Offender Manager, his Community Offender Manager (COM) and a prison appointed 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 transfer to open conditions.

 

The Relevant Law

 

11.The panel correctly sets out in its decision letter dated 24 February 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) 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).

 

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.

 

The reply on behalf of the Secretary of State

 

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

 

Discussion

 

Ground 1 - Irrationality

 

25.The submissions in relation to irrationality are that in disagreeing with the professional assessments and recommendations the panel did not follow a rational trajectory, placed a disproportionate amount of weight on PROSPER an Intensive Intervention and Risk Management Service (IIRMS) being declined and little weight on the benefit of a PIPE hostel. The application submits that the panel was irrational in placing so much weight on the availability of the PROSPER service. The application submits that the panel has been contradictory in accepting the risk assessments of the professionals but concluding that the risk scores may be underestimated. The application submits that the panel’s over reliance on breach of bail conditions twenty years previously was irrational considering the Applicant’s subsequent transfer to open conditions and contradictory and irrational in the light of the decision to recommend release. The Applicant acknowledges that adopting a different view from professionals is not a ground for reconsideration but submits that “the departure from the evidence is remarkable”. 

 

26.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 decision makes it clear the reason why the panel has adopted a different position from the professional witnesses.

 

27.Questions of weight attached to aspects of evidence are matters for the panel. The application is not correct in stating that the panel’s decision was largely influenced by the rejection of PROSPER, it was not. The panel sets out its concerns regarding the Applicant’s personality traits which it considered were linked to his risk of serious harm and manageability in the community. Issues of compliance, lack of motivation and limited insight were some of the other matters taken into consideration by the panel.

 

28.The application sets out a number of matters which it is said the panel failed to take into account in reaching its conclusion. There is no evidence that the panel failed to take into account those matters which were contained in the evidence of the professionals. The decision letter makes it clear that the panel took all the matters into account. The application concentrates superficially on the service offered rather than the detail of the panel’s concerns such as the lack of provision of further interventions or treatment to help the Applicant better understand his personality difficulties. It was this that the panel took to be a significant omission as it was entitled to do for the reasons it gave.

 

29.I do not agree that the panel’s assessment of risk is contradictory. In the earlier paragraphs the panel is stating that it does not disagree with the professionals’ assessment of risk as it stands. In the latter paragraphs of the decision letter the panel having considered all matters and undertaken its own assessment comes to the conclusion that based on that consideration the previous assessment may be an underestimation. The fact remains that the panel considered that at the least the Applicant posed a high risk of serious harm to the public and at least medium risk to known adults.

 

30.The submissions in the application regarding the panel’s consideration of the breach of bail are unclear. The panel clearly did not place as much weight on the breach of bail conditions of twenty years previously as the application claims as the panel concluded that there were no concerns regarding abscond.

 

31.The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin), R (Hutt) v Parole Board [2018] EWHC 1041 (Admin). The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are the progress of the Applicant in addressing and reducing his risk, the likeliness of the Applicant complying with conditions of release, the likeliness of the Applicant absconding; and the benefit the Applicant would derive from open conditions.

 

32.Whilst the Applicant did not meet the test for release, he met that for a recommendation for a move to open conditions for the reasons set out in the decision letter, applying the considerations in the cases mentioned above. There is no contradiction or irrationality in that conclusion.

 

33.There are no grounds on which it could be sustainably argued that the decision not to release the Applicant was so illogical or irrational that every other panel would have decided otherwise, and this ground must therefore fail.

 

Ground 2 - Procedural error

 

34.The application submits that the panel should have adjourned to allow the COM to make further enquiries in particular regarding PROSPER and to seek advice from the local Offender Personality Disorder (OPD) of the availability of services in the area. It is further submitted that the panel should have adjourned for a report from a psychologist trained in International Personality Disorder Examination (IPDE) or Psychopathy Checklist - Revised (PCL-R) assessments. The application complains about the questioning during the hearing, that there was a failure of the panel to explore the impact of the IPP on the Applicant and that the panel prevented the Applicant from giving his full account regarding the allegation of throwing a flask at an officer.

 

35.It was not necessary for the panel to adjourn for further enquiries. On the information presented the professionals had been able to give all relevant evidence and make their recommendations; the matters on which it is claimed the panel should have adjourned would not have been determinative of the question of risk or release. The Applicant does not suggest that an application was made for an adjournment on his behalf. No unfairness arises from an application that was not requested and was not considered necessary by the panel.

 

36.The Applicant was represented throughout the hearing by a legal representative. The panel was entitled to question the psychologist about her experience and training regarding IPDE or PCL. There is no evidence from the decision letter or in the application that the panel did not accept her experience or ability to provide an appropriate report. The rejection of the conclusion was not on account of the experience of the psychologist but because the panel reached a different conclusion on the basis of all the evidence presented. There was no unfairness in not adjourning for a further report from another psychologist.

 

37.The panel was aware of the history of the Applicant’s detention, both in closed and open conditions. If the Applicant wished to make a submission that some of his behaviour may have been trauma led it was open to him to request an adjournment to present expert evidence to that effect. The Applicant gave evidence and was not prevented from giving details of the impact of the IPP on him. The panel had before it reports from three professionals including a psychologist, the Applicant’s representative could have questioned them further if this was an issue that needed to be addressed. There is no procedural error in the panel not doing so. 

 

38.There are, as the application claims, many pages in the dossier concerning the incident of the throwing of the flask. However the application does not identify what procedural unfairness or prejudice resulted if the Applicant was not permitted to give details of the incident where it was not a matter on which the panel made a finding of fact or a matter which was the single or important factor in not directing release. This is an argument without foundation.

 

39.I am satisfied that none of the matters raised evidence procedural unfairness and this ground therefore fails.

 

Decision

 

40.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

01 May 2025