[2025] PBRA 101
Application for Reconsideration by Massey
Application
1. This is an application by Massey (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 22 April 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 panel’s oral hearing decision, the application for reconsideration drafted by the Applicant’s solicitor and the representations of the Secretary of State (the Respondent).
Request for Reconsideration
4. The application for reconsideration is dated 1 May 2025.
5. The grounds for seeking a reconsideration are set out below.
Background
6. The Applicant is serving an extended sentence of imprisonment comprising of a nine-year custodial period and a four-year extension period. The index offences were conspiracy to commit robbery and conspiracy to possess an imitation firearm. The index offences involved the Applicant and co-defendants using pickaxes and a metal grinder to break into a jewellery shop. The judge described the robbery as a professionally planned commercial robbery involving significant disregard for public safety. The Applicant was aged 26 at the time of sentence he was 34 at the time of the panel hearing. The Applicant received a further sentence in relation to absconding from an open prison.
Current parole review
7. The Secretary of State referred the case to the parole board to consider whether the Applicant should be directed for release. The oral hearing panel consisted of three independent members of the parole board including an independent chair of the parole board. Evidence was given at the hearing by a prison offender manager (POM), a prison instructed psychologist and a community offender manager (COM). The Applicant gave evidence. The Applicant was legally represented.
The Relevant Law
8. The panel correctly sets out in its decision letter dated 22 April 2025 the test for release.
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)).
Irrationality
11.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.
12.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.”
13.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).
14.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.
15.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.
16.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.
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 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
23.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
24.The Respondent offered no representations.
Discussion
Ground 1
25.It is submitted on behalf of the Applicant, that the panel were inconsistent with their assessment of risk factors, specifically they failed to acknowledge the Applicant’s good behaviour in prison and his insight into risks.
Discussion
26.The panel in this case acknowledged that the Applicant had shown that he was able to comply with prison restrictions for a relatively lengthy period of time. This finding was based on his prison behaviour both in closed and open conditions. However, the panel took the view that stable behaviour in prison did not necessarily reflect the risk in the community. The panel noted that the Applicant had failed to raise issues about family stresses (with professionals) which led to him absconding from an open prison. The Applicant also, whilst unlawfully at large, was untruthful with his family and had used drugs to cope with stress. The panel’s concern was that, whilst in the community, there were doubts as to whether the Applicant would be open and honest with professionals given his conduct in the past.
27.The panel having weighed the evidence relating to the Applicant’s behaviour in the community, against his positive behaviour in prison, concluded that the Applicant had failed to demonstrate sufficient internal controls, to manage his risk while in the community. The evidence for this decision was based upon their own assessment of the material within the dossier together with the views of the prison instructed psychologist and the COM. I am therefore not persuaded that the panel failed to take reasonable account of the Applicant’s positive behaviour in prison. The panel were bound to look at the evidence of the Applicant’s behaviour holistically and take account of historical behaviour. For that reason I do not find that the panel acted irrationally in this regard.
Ground 2
28.The Applicant’s legal adviser submits that the panel disproportionately took account of the views of the prison instructed psychologist and the COM (who were not recommending release) rather than that of the POM who was recommending release. The panel also failed to take account of the Applicant’s protective factors such as family support.
Discussion
29.Having considered the decision in this case it is clear that the panel took account of the entirety of the evidence both positive and negative in relation to the Applicant. The panel were not bound to follow any particular recommendation from professionals. In this case as noted there was a mixed view as to whether the Applicant’s risk could be managed in the community. The panel clearly considered the evidence supporting the potential for directing release but concluded that there was evidence of a lack of insight by the Applicant particularly demonstrated by his decision to abscond from an open prison and to associate with negative peers while in the community. The panel also noted that the Applicant was not open and honest with his family in the community in that he accepted that he had not told his family that he had absconded and had associated with a criminal peer in order to support him while in the community unlawfully.
30.In the light of the evidence adduced at the hearing and the explanation by the panel within the decision, I am not persuaded that the panel acted unfairly in taking account of the competing evidence or that they disproportionately took account of the evidence of the professionals who were not recommending release.
31.The panel 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 the witnesses. Where there is a conflict of opinion, it is plainly a matter for the panel to determine which opinion they prefer. Provided the reasons for the decision are soundly based on evidence, as well as rational and reasonable at least not outrageous in the sense set out above it will be inappropriate to direct that the decision be reconsidered unless it is manifestly obvious that there are compelling reasons for interfering with the decision.
32.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 (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.
33.The reconsideration mechanism is not a process whereby the judgement of the panel when assessing risk can be lightly interfered with. Nor is it a mechanism for substituting a differing view of the facts to those found by the panel, unless, of course, it is manifestly obvious that there was an error of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the panel.
34.In all the circumstances I refuse the application for reconsideration
Decision
35.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 S Dawson
14 May 2025