The Parole Board for England and Wales

 

 

[2025] PBRA 90

 

 

 

Application for Reconsideration by Cable

 

Application

 

1.   This is is an application by Cable (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 28 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 dossier, the decision of the oral hearing panel, and the application for reconsideration drafted by the Applicant’s legal adviser.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 15 April 2025.

 

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

 

Background

 

6.   The Applicant is serving a sentence of life imprisonment for the offence of murder. He was sentenced in September 2000 when he was aged 25. His tariff expired in February 2014. He had been released on two occasions in the past by the Parole Board on licence. He was therefore being considered for release by way of a referral from the Secretary of State (the Respondent), having been recalled. The facts of the index offence were that the Applicant, with others, took a 35 year old woman to a wooded area. There the victim was strangled and her body left in the area. The Applicant initially denied responsibility for the offence. Later the Applicant accepted that he was involved in disposing of the victim’s body but not involved in the actual murder. The panel were bound by the conviction and assessed the case on the basis that the Applicant had been properly convicted.

 

Current parole review

 

7.   As indicated above the referral from the Respondent requested that the Parole Board consider whether the Applicant should be released having been recalled and if not whether he should be recommended for transfer to an open prison. The Applicant was aged 50 at the time of the oral hearing.

 

8.   The Parole Board panel consisted of an independent chair of the Parole Board and a further independent member. Evidence was received at the hearing from a prison offender manager (POM), a community offender manager (COM), and a counselling supervisor. The Applicant was legally represented.

 

The Relevant Law

 

9.   The panel correctly sets out in its decision letter dated 28 March 2025 the test for release and the issues to be addressed in making a recommendation to the Respondent for a progressive move to open conditions.

 

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)).

 

12.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

 

13.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.

 

14.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.”

 

15.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).

 

16.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.

 

17.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.

 

18.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

 

19. 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.

 

20. 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.

 

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

 

Error of law

 

22.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.

 

23.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

 

24.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), and 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:

 

(a)        the progress of the prisoner in addressing and reducing their risk;

(b)        the likeliness of the prisoner to comply with conditions of temporary release;

(c)        the likeliness of the prisoner absconding; and

(d)        the benefit the prisoner is likely to derive from open conditions.

 

25.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

 

26.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 Secretary of State

 

27.The Respondent offered no representations.

 

Grounds and Discussion

 

Ground 1

 

28.It is submitted on behalf of the Applicant that the panel relied upon an allegation of past negative behaviour, but did not appropriately apply the legal test and Parole Board guidance relating to allegations in parole hearings.

 

Discussion

 

29.This submission, on behalf of the Applicant, arises in circumstances where it was said that a partner of the Applicant (while he was in the community) had threatened to disclose that the Applicant had placed his hands around her throat creating a situation of risk. In the event the allegation was not formally made or supported by the partner. The partner had apparently threatened to make such an allegation but said that the behaviour had not occurred.

 

30.The panel’s approach to this evidence was to confirm that there was insufficient evidence to make a formal finding, on the balance of probabilities, as to whether the incident occurred. The criteria is set out in the relevant law and Parole Board Guidance.

 

31.However, as noted in the decision letter, the panel were entitled to take account of evidence of this nature. The panel’s approach was to indicate that in their view the circumstances of threatening this allegation, whether true or false, was evidence of a deterioration in the relationship with that partner and an evidence that the relationship had become unhealthy.

 

32.The panel also assessed this evidence taking account of a recorded background of instances of serious relationship difficulties and hostility in relationships (with other partners) in the past. The panel concluded that risk in relationships was high, and that the Applicant was not able to demonstrate that the risk of serious harm in relationships had been addressed. The panel also took the view that the Applicant demonstrated little in the way of insight. He had expressed no concerns about returning to live with the partner (who had raised the issue of hands being placed around the neck), despite the clear concerns about the safety of the relationship and the need for behavioural work to address relationship difficulties.

 

33.In my determination the panel clearly set out its reasons for being concerned about the risk of serious harm relating the Applicant, and his behaviour in relationships. The panel applied the law and guidance in relation to allegations appropriately. I am not persuaded that this amounts to irrational decision-making as set out above.

 

Ground 2

 

34.It is submitted that there was credible evidence from the POM who was responsible for the Applicant’s supervision in prison, that the Applicant had progressed and could be safely managed in the community.

 

Discussion

 

35.The panel clearly took account of the view of the POM. The panel’s rationale was that the issue of relationships was one which was not usefully tested within the prison environment. Although the Applicant had built a positive relationship with prison staff, the evidence was that the Applicant’s conduct and behaviour during previous licence periods (in the community) was poor and non-compliant. It was also notable that the COM responsible for the Applicant’s behaviour in the community, was not supportive of release and indicated the need for further work in relation to managing risk. I am not therefore persuaded that the panel erred by rejecting the views of the POM in this case regarding release.

 

36.The panel in this case had the advantage of an extensive dossier of reports and other material. They also had the advantage of seeing and hearing the Applicant as well as witnesses. The Applicant was also legally represented. Panels of the Parole Board are not obliged to adopt the opinions and recommendations of any particular witness. It is their responsibility to make their own risk assessment 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 (while also protecting the prisoner from unnecessary incarceration) if they failed to do just that. As was observed by the Divisional Court in DSD they have the expertise to do it.

 

37.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. I am not persuaded that this is a case where there are compelling reasons for interference and accordingly the application for reconsideration is refused.

 

Decision

 

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

 

 

 

HH Stephen Dawson

08 May 2025