The Parole Board for England and Wales

 

 

[2025] PBRA 95

 

 

 

Application for Reconsideration by Senior

 

Application

 

1.   This is an application by Senior (the Applicant) for reconsideration of a decision of a Member Case Assessment (MCA) member dated the 16 January 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. The dossier consisting of 241 pages, the decision of the single-member, the decision of the review member, the application for reconsideration drafted by the Applicants legal adviser and the representations on behalf of the Secretary of State (the Respondent).

 

Request for Reconsideration

 

4.   The application for reconsideration is undated but was received on 12 March 2025.

 

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

 

Background

 

6.   The Applicant is serving a sentence of imprisonment for public protection. The offences were three offences of assault contrary to section 18, attempted robbery, breach anti-social behaviour order (x2) and handling stolen goods. The Applicant was aged 25 at the time of sentence. The Applicant was 40 at the time of the panel decision. The Applicant had been released on two occasions in the past and been recalled. The robbery offence related to entry into the home of a man who had left his door ajar. There was an attempt to rob the man who resisted. The Applicant lashed out with a knife and stabbed the victim of the robbery as well as other family members who came to assist. The Applicant’s tariff expired in October 2015.

 

Current parole review

 

7.   The matter was referred to the Parole Board by the Respondent to consider whether the Applicant should be released or in the alternative subject to a recommendation for transfer to an open prison. As noted below this was a case which was concluded by a MCA member on the basis of the written evidence. The evidence considered was a dossier together with reports from the Prison Offender Manager (POM) and Community Offender Manager (COM). Representations from the Applicant’s legal adviser were considered at the review stage of the decision.

 

The Relevant Law

 

8.   The panel correctly sets out in its decision letter 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)

 

9.   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)).

 

10.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)).

 

11.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

 

12.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.

 

13.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.”

 

14.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).

 

15.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.

 

16.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.

 

Procedural unfairness

 

17.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.

 

18.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.

 

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

 

Error of law

 

20.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.

 

21.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

 

22.In the cases of Osborn v Parole Board [2013] UKSC 61, the Supreme Court comprehensively reviewed the basis on which the Parole Board should consider applications for an oral hearing. Their conclusions are set out at paragraph 2 of the judgment. The Supreme Court did not decide that there should always be an oral hearing but said there should be if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they should be ordered where there is a dispute on the facts; where the panel needs to see and hear from the prisoner in order to properly assess risk and where it is necessary in order to allow the prisoner to properly put his case. When deciding whether to direct an oral hearing the Board should take into account the prisoner’s legitimate interest in being able to participate in a decision with important implications for him. It is not necessary that there should be a realistic prospect of progression for an oral hearing to be directed.

 

23.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:

 

(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.

 

24.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."

 

25.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.

 

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.

 

Discussion

 

Ground 1

 

28.It is submitted by his legal adviser, on behalf of the Applicant, that the MCA decision-maker in this case failed to follow procedural guidelines in that the MCA member did not wait for the outcome of a forthcoming criminal case. The Parole Board guidance relating to MCA decisions is cited.

 

Discussion

 

29.The background to this application is that the Applicant was subject to a referral from the Secretary of State to the Parole Board to consider whether he should be directed for release or in the alternative whether there should be a transfer to open conditions. The matter was initially referred to a MCA panel which consisted of a single member who considered the dossier. The Parole Board procedure requires an MCA Parole Board member to assess and consider referrals and the evidence in the dossier, and to reach a conclusion as to whether there exists sufficient information to allow the matter to be concluded without an oral hearing or whether an oral hearing is necessary.

 

30.As indicated by the Applicant’s legal adviser the case of Osborn is relevant to that decision. In this case it is argued that the single-member failed to follow guidelines relating to the information which was necessary to effectively complete an MCA case. In particular the argument by the Applicant’s legal adviser is that the MCA panel member did not have sufficient information “to understand, analyse, and reflect on the manageability of risk in the future”.

 

31.The primary complaint being that the Applicant has been charged with a criminal offence of assault and is awaiting trial. The argument adduced on behalf of the Applicant is that the outcome of the trial, not being available to the MCA member, meant that the MCA member did not have sufficient information to make a decision.

 

32.In my determination this is a misreading of the guidance. The guidance does not require that every outstanding matter is concluded before a decision is made by an MCA member. The MCA member is under a duty to conclude the matter promptly. The fact that there was an outstanding criminal charge was clearly a matter which impacted upon the current risk of the Applicant. The MCA member was entitled to take account of the fact that a decision had been made to lay a charge against the Applicant. The MCA member made it clear that no final decision was made on the balance of probabilities as to the outcome of the alleged assault, however in line with the decision in Pearce [2023] UKSC 13 and the relevant Parole Board guidance in relation to allegations, the panel member took account of the fact that there was an outstanding allegation.

 

33.In the case of Pearce the Supreme Court said as follows;

 

“In some circumstances, however, the Board may not be able to make findings of fact as to the truth of an allegation either because of an inability to obtain sufficiently reliable evidence or because it would be unfair to expect the prisoner to give an answer to the allegation when he is facing criminal or prison disciplinary proceedings in relation to that allegation.

 

“In such circumstances the Board having regard to public safety, may take into account the allegation or allegations and give it or them such weight as it considers appropriate in a holistic assessment of all the information before it, where it is concerned that there is a serious possibility that those allegations may be true. But the Board must proceed with considerable caution in this exercise because of the consequences of it’s decision on the prisoner. Procedural fairness requires the Board to give the prisoner the opportunity to make submissions about how the Board ought to proceed. There may be circumstances where, because of the inadequacy of the information available to the Board, it concludes that it should not take account of an allegation at all. There may also be circumstances where the information is less than would be desired but the allegation causes sufficient concern, as to risk, that the Board treats it as relevant. It’s assessment of the weight to be attached to an allegation is subject to constraints of public law rationality. “

 

34.The panel member in this case indicated that it was relevant to take account of the allegation on the basis that there was a serious possibility that the allegation may be true, based upon the fact that a police investigation had been undertaken, and the charge had been laid.

 

35.The panel member, in the decision, took account of other factors which holistically indicated that this was not a case which engaged the principles of Osborn. In particular the panel member took account of the evidence of poor behaviour in prison since recall. The number of recalls that have taken place. The fact that the Applicant had a poor relationship with the probation service (although the relationship was apparently improving) and the fact that there appeared to be little in the way of protective factors supporting a decision either for release or transfer to open conditions.

 

36.I am therefore not persuaded that the panel were either obliged to adjourn, or were acting procedurally unfairly, by not adjourning the matter to await the outcome of the forthcoming trial. The panel had sufficient evidence to make a decision at the point of the referral as to the Applicants risk. The panel’s obligation was to assess that risk at the time of the referral. The panel in my determination had sufficient information to reach a fair and proportionate conclusion.

 

37.Representations from the Applicant’s legal adviser were later received and reconsidered by a single member under the preliminary appeal procedure (Rule 20 Parole Board Rules). Those representations and the case as a whole were considered at this further review, the application for an oral hearing was refused.

 

38.I am not therefore persuaded that the Applicant was subject to procedural unfairness as representations were fully considered by a Parole Board member before the final decision was endorsed pursuant to the Parole Board rules. I am also not persuaded that the decision was either procedurally unfair or irrational on the basis of the evidence cited by the MCA member in the decision.

 

Ground 2

 

39.It is submitted that the MCA panel member failed to address the central fundamental question outlined in the case of Osborn namely that fairness called for an oral hearing.

 

Discussion

 

40.Having considered the MCA panel members decision in this case it is clear that the MCA member took full account of the considerations of Osborn. The panel member indicated in the decision itself that the case of Osborn had been considered and taken into account in reaching the conclusion. As is well understood from the case of Osborn, not every referral from the Secretary of State will merit an oral hearing. The decision in Osborn anticipates cases where the Parole Board have sufficient information to reach a fair and balanced conclusion without requiring an oral hearing. In this case the panel member set out a clearly argued decision as to the reasons for rejecting an oral hearing and the reasons for concluding that the Applicant’s risk could not be safely managed in the community at the time of the decision. The reasons being the reported poor behaviour of the Applicant in custody, the Applicant’s  prison status had been increased by one category because of the escalation in behaviour and the threat of violence towards staff. There were concerns about drug misuse in prison which was a continuing risk factor. The Applicant had accrued a number of adjudications in prison since the recall. The Applicant had also been the subject of a number of negative reports which included aggressive and hostile behaviour towards staff. Osborn, in my determination was appropriately addressed.

 

Ground 3

 

41.It is submitted that the MCA decision-maker failed to take account of the fact that the Applicant was post tariff in connection with his sentence.

 

Discussion

 

42.The Applicants legal adviser correctly indicates that in the case of Osborn it was noted that the decision as to whether the level of risk is unacceptable should be scrutinised anxiously particularly taking into account the length of time the prisoner has spent in prison. However as noted in the decision by the MCA member careful consideration had been given to the position. It was noted that both the COM and POM did not support release or transfer. The reason cited by the MCA member were the lack of engagement with professionals, the Applicant’s custodial behaviour and the fact there were outstanding criminal proceedings in relation to assault. It was also noted that the Applicant’s behaviour in custody had continued to be challenging since the last review by the Parole Board with adjudications recorded in the prison record. The MCA panel took account of the fact that the difficult relationships that the Applicant had with COM’s - this was a prominent and serious issue in terms of managing risk in the community. I am not therefore persuaded that the MCA member failed to take account of the considerations within Osborn or that the overall decision was irrational or procedurally unfair.

 

43.The application for reconsideration is therefore refused.

 

Decision

 

44.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.

 

 

HH Stephen Dawson

09 May 2025