[2025] PBRA 131
Application for Reconsideration by Ford
Application
1. This is an application by Ford (the Applicant) for reconsideration of a decision of an oral hearing panel dated 28 April 2025 not to direct his release.
2. Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (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 223 pages, the application for reconsideration and supporting documentation.
Request for Reconsideration
4. The application for reconsideration is dated 6 June 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was irrational and procedurally unfair.
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 detention for public protection on 10 December 2008 following conviction for 13 offences involving firearms, perverting the course of justice and making threats to kill. His tariff, which had been reduced on appeal, was 6 years less time spent on remand and expired in September 2013.
7. The Applicant was 20 years old at the time of sentencing and is now 37 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 2025 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 Secretary of State whether the Applicant should be transferred to open conditions.
9. The case was considered on the papers. The panel did not direct the Applicant’s release nor make a recommendation for open conditions.
The Relevant Law
10.The panel correctly sets out in its decision letter dated 28 April 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)
11.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)).
12.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)).
13.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
14.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.
15.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.”
16.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).
17.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.
18.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. 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
(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.
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.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
24.The Respondent has submitted no representations in response to this application.
Discussion
25.The application (paragraph 3 in particular) details a number of matters which it is said the Applicant brought to the attention of his representative but which were not brought to the attention of the panel. He challenges some of the reasons for recall and attaches documents which explain his account for lateness.
26.The Applicant’s representations considered by the panel dealt with his explanations for his conduct leading to the recall. Those matters were thoroughly and fairly dealt with by the panel. Any further matters now relied upon but not brought to the panel’s attention at the time cannot give rise to procedural irregularity.
27.In paragraph 4 of his application the Applicant challenges the recall submitting that matters mentioned to his COM had not been repeated to the panel. Matters not brought to the panel’s attention cannot form the basis of a claim for procedural irregularity. The decision in a very detailed analysis deals with the breaches and also with the Applicant’s response. There is nothing irregular or unfair in that decision.
28.The detailed submissions in paragraph 5 of the application amount to an attempt to re-argue matters already thoroughly considered by the panel. The panel’s consideration of the Improvement Plan Meeting and the Applicant’s reaction is based on a correct reading and assessment of the representations submitted by the Applicant. The Applicant’s attempt to provide further refinement to his response does not amount to unfairness on the part of the panel.
29.The fact that the Applicant and his representative failed to identify evidence which was in the dossier but not addressed by them also does not give rise to any unfairness. It is testament to the panel’s thoroughness that matters were dealt with which had not been identified by the Applicant (such as negative behavioural entries). The Applicant does not submit that the information is incorrect and the fact that he failed to identify matters and deal with them in his representations does not present him with a valid ground for reconsideration.
30.The panel carefully considered the principles in Osborne, Booth & Reilly [2013] UKSC 61 and the decision not to hold an oral hearing was neither irrational nor procedurally unfair. The detailed written representations submitted by his legal representative and those submitted by the Applicant himself were carefully and fairly considered by the panel. The panel considered all the matters raised by the Applicant which were properly before the panel, including those positive to his case. The additional material now presented would not have affected the decision which is not based on disbelief of the Applicant but rather on his failures which the new material confirms. Nor does the absence of the additional material indicate any procedural unfairness. This ground therefore fails.
31.The Applicant and his legal representative are no doubt disappointed with the decision. The Applicant was sentenced for the index offences when he was 20 years old. As he states in his application, he was 11 years over tariff before his release. However, on release he failed to comply with the conditions of his licence and the recall was justified for the reasons clearly given by the panel. The panel has to apply the test for release and having done so could not be satisfied for the reasons given (which included failure to comply with the risk management plan and no evidence of motivation to engage with the support offered), that the Applicant satisfies the test for release. That was a reasoned conclusion properly open to the panel on the evidence and not procedurally unfair.
Decision
32.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
23 June 2025