[2025] PBRA 102
Application for Reconsideration by Newcombe
Application
1. This is an application by Newcombe (the Applicant) for reconsideration of a decision of an oral hearing panel dated 4 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 oral hearing decision, the dossier consisting of 353 pages and the application for reconsideration.
Request for Reconsideration
4. The application for reconsideration is dated 24 April 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was irrational and/or procedurally improper.
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 as an offender of particular concern of 15 years and 6 months with an additional licence period of 12 months on 18 November 2016 for two offences of rape on the same victim. He also received on the same occasion concurrent sentences of 8 years imprisonment for indecent assault on the same victim. His sentence expiry date is May 2033.
7. The Applicant was 36 years old at the time of sentencing and is now 45 years old.
Current parole review
8. The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in November 2023 to consider whether or not it would be appropriate to direct his release.
9. The case proceeded to an oral hearing via videoconference on 5 February 2025. The panel consisted of two independent members. It heard oral evidence from the Applicant, together with his Prison Offender Manager (POM), Community Offender Manager (COM) and a prison psychologist. The Applicant was legally represented by an advocate.
The Relevant Law
10.The panel correctly sets out in its decision letter dated 4 April 2025 the test for release.
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)).
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
(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.
The reply on behalf of the Secretary of State
22.The Respondent has submitted no representations in response to this application.
Discussion
23.The first ground argues that the decision is irrational in giving insufficient weight to the recommendations given by the professionals and submits that the reasons given are unreasonable.
24.It is a matter for the Panel, with appropriate and proper reasons, what evidence they accept, or to which they afford weight, and what they reject. They must form their own conclusions and judgment on the matter. That is what this panel did and gave reasons for their conclusions which were logical and rational and could not in any way be described as irrational or unreasonable.
25.The Panel did not agree with the professionals that the Applicant had insight into the triggers/motivation for his index offences. The panel were concerned that his claim to have “buried” the index offences did not explain how he overcame that barrier to rape a child. In addition, the Panel had concerns regarding his new disclosure of deliberately seeking out an adult to have access to a child. It was clear from the questions and answers recorded in the decision that the professionals had not elicited such answers from the Applicant in their interviews and not addressed them in their reports. It is unsurprising therefore that the Panel did not give more weight to the recommendations of the professionals.
26.The panel was concerned that there was the need to explore the index offending and the Panel did not find the Applicant’s claim to bury negative aspects of his past provided a protective factor. Another concern of the Panel related to lack of a plan for accommodation; the COM informed the Panel that she could not support release without a clear plan for accommodation. Those reasons were all individually and collectively reasonable and this ground must therefore fail.
27.The second ground argues that the Panel failed to consider that the Applicant was nervous at the outset of the hearing and that the POM had said that the Applicant “can take time to develop working relationships”.
28.It is not entirely clear the nature of the complaint being raised by the Applicant, no particulars ae provided. There is no evidence that the Applicant was not treated fairly. The Panel had regard to the positive aspects of his case such as his positive engagement and positive custodial conduct. Whilst the Panel noted the POM’s evidence that the Applicant could take time to develop a working relationship, nevertheless despite having only met on one occasion the Applicant considered that he could approach the COM with any issues that arose in the community. There was no unfairness or irrationality in the Panel’s conduct or consideration of the hearing. This ground therefore fails.
29.The final ground states that the Applicant appears to have been criticised for the manner of his answers. No further details or examples are provided in support of this ground and I can see none to support this claim. This ground must therefore fail.
Decision
30.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
14 May 2025