The Parole Board for England and Wales

 

[2025] PBRA 88

 

 

 

Application for Reconsideration by Pullen

 

Application

 

1.   This is an application by Pullen (the Applicant) for reconsideration of a decision of an oral hearing dated the 18 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 1092 pages and the application for reconsideration.

 

Request for Reconsideration

 

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

 

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

Background

 

6.   The Applicant received a sentence of imprisonment for public protection on 9 August 2007 for robbery, attempt robbery and attempt obstructing the course of justice. His tariff was set at 20 months.

 

7.   The Applicant was 18 years old when sentenced and is now 36 years old.

 

Current parole review

 

8.   The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in January 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 video-conference on 14 March 2025. The panel consisted of two independent members and a psychiatrist member. It heard oral evidence from the Applicant together with his Prison Offender Manager, Community Offender Manager, Prison Psychologist and Prisoner Commissioned 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 nor make a recommendation for open conditions. 

 

The Relevant Law

 

11.The panel correctly sets out in its decision letter dated 18 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) 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.

The reply on behalf of the Secretary of State

 

21.The Respondent has not submitted any representations in response to this application. 

 

Discussion

 

22.The application notes that all the professional witnesses were of the view that risk of serious harm was not imminent and submits that the panel did not explain why it did not feel the test for release was not met. The application submits that the panel used a compliance rather than serious harm test ignoring the fact that in respect of the previous releases the Applicant had not caused the public further serious harm, that contrary to findings of previous panels the panel stated the core risk reduction work remained outstanding and that there were insufficient reasons for reaching a decision contrary to those of the professionals.

 

23.The panel is not obliged to follow the conclusion of previous panels or of the majority of professional witnesses in its hearing. The panel must undertake its own analysis of the evidence presented before it. It would be failing in its duty if it did not do so. In a detailed decision the panel applies the correct test that is automatically set out in the decision letter, sets out the views of the professionals and gives reasons for its findings.

 

24.The panel did not ignore the fact that there had been no previous violence on release, the panel specifically stated that it was to the Applicant’s credit that there had been no repeat of violence since the further offence. The panel of course considered the question of imminence which was dealt with by all the witnesses but the panel did not take that as the test for public protection or release.

 

25.In stating that core risk reduction work needed to be undertaken the panel noted that the Applicant had only recently accepted the impact of the past trauma linking to his substance misuse and resulting in poor mental health and offending. That was not a recognition that was before previous panels as the Applicant was said to be in denial previously. The situation before this panel was therefore very different from that before previous panels and the result was the conclusion set out in the decision letter.

 

26.The panel’s reasons for concluding that the test for release had not been met are clearly set out. The Applicant’s persistent pattern of rule breaking, poor problem-solving skills, ongoing mental health concerns, inconsistent engagement with professional support, lack of internal controls are all matters relevant to the question of management of his risk which the panel found for the reasons set out remain live and high.

 

27.The Applicant’s disagreement with the panel’s conclusions which are thoroughly, fairly and correctly set out is not enough to establish irrationality in law. The legal test sets a high bar which this case does not meet.

 

Decision

 

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

 

 

 

Barbara Mensah

06 May 2025