[2025] PBRA 104
Application for Reconsideration by Hussain
Application
1. This is an application by Hussain (the Applicant) for reconsideration of a decision dated 11 April 2025 not to direct his release. The decision was made by a panel following an oral hearing.
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.
3. I have considered the application on the papers. These are the decision, the dossier (consisting of 462 numbered pages), and the application for reconsideration.
Background
4. On 19 December 2006, the Applicant received a sentence of imprisonment for public protection following conviction after trial for kidnapping.
5. The tariff was set at 30 months (less time spent on remand) and expired in November 2008.
6. The Applicant was 28 years old at the time of sentencing and is now 46 years old.
7. He was released on licence in February 2018 after an oral hearing, but recalled three months later.
Request for Reconsideration
8. The application for reconsideration has been submitted by the Applicant. It argues that the decision was procedurally unfair. No submissions were made regarding irrationality or error of law.
9. This is supplemented by written arguments to which reference will be made in the Discussion section below.
Current Parole Review
10.The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in October 2023 to consider whether or not it would be appropriate to direct his release. If release was not directed the Board was invited to advise the Respondent whether the Applicant should be transferred to open conditions. It is only the release decision that is subject to reconsideration. This is the Applicant’s eighth parole review.
11.The referral was amended to include consideration of whether or not it would be appropriate to release the Applicant unconditionally.
12.The case proceeded to an oral hearing on 2 April 2025, before a three-member panel including a psychologist specialist member. The panel took oral evidence from the Applicant, the prison offender manager (POM), an HMPPS-commissioned forensic psychologist, and the community offender manager (COM). The Applicant was legally represented throughout the hearing.
The Relevant Law
13.The Parole Board will direct release if it is no longer necessary for the protection of the public that the prisoner should be confined.
Parole Board Rules 2019 (as amended)
14.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)).
15.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)).
16.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.
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; and/or
(e) the panel was not impartial.
19.The overriding objective is to ensure that the Applicant’s case was dealt with justly.
The reply on behalf of the Respondent
20.The Respondent has advised that no representations will be submitted in response to this application.
Discussion
21.This application for reconsideration is made on the ground that the panel’s decision not to direct release was procedurally unfair.
22.The Applicant raises the following grounds:
(a) the exclusion of the prisoner-commissioned psychologist from the hearing, and alleged unequal treatment of that psychologist’s report;
(b) a factual inaccuracy in the characterisation of his 2018 conviction as assault occasioning actual bodily harm rather than battery;
(c) allegations that the panel mischaracterised his engagement with structured interventions such as Kaizen and PIPE;
(d) concerns regarding the timing and handling of a proposed PIPE transfer; and
(e) claims of ineffective legal representation, including failure to cross-examine witnesses or raise key concerns on his behalf.
Procedural fairness - exclusion of prisoner-commissioned psychologist
23.The Applicant asserts that the panel acted unfairly by declining to permit the attendance of the prisoner-commissioned psychologist and by giving undue weight to the psychological report commissioned on behalf of HMPPS.
24.The attendance of witnesses is a matter of discretion for the panel. However, there is no evidence that a formal direction was sought or refused in relation to the attendance of the prisoner-commissioned psychologist, nor is there any indication that the panel did not fairly consider his report which was contained within the dossier.
25.It is also noted that the independent psychological report was commissioned by a different firm of solicitors to those who represented the Applicant at the hearing. No application was made at the hearing for the psychologist to attend, nor were any submissions raised about the panel’s treatment of that report.
26.Panels are entitled to prefer alternative professional evidence, if it gives reasons for doing so, and there is no indication that this discretion was exercised in a procedurally improper way.
27.There is no procedural unfairness on this ground.
Factual inaccuracy - nature of 2018 conviction
28.The Applicant contends that the panel wrongly referred to his 2018 conviction as one of assault occasioning actual bodily harm, when in fact it was for battery.
29.Even if accepted, this would amount to nothing more than a minor factual error. The panel’s analysis focused not on the legal classification but on the conduct described, namely, assaults on his wife and son in the presence of other children. There is no evidence that this misdescription materially affected the panel’s assessment of risk.
30.This point does not meet the threshold for reconsideration.
Engagement with offence-focussed work
31.The Applicant asserts that he was willing to engage with the Kaizen programme and disputes the panel’s finding that he was deselected due to his own conduct. He also contests the claim that he refused to consider a PIPE placement.
32.The panel had before it evidence from the Kaizen team (including a deselection letter dated 7 November 2023) which confirmed concerns about his inability to identify goals he wished to address linked to his offending. The panel’s decision also notes that the Applicant said he would not go to the relevant PIPE unit “because that would be like going backward”. While the Applicant told the panel did not resist the idea of a PIPE placement, I find no evidence to suggest that he was willing or able to engage with it in a meaningful way.
33.The panel’s conclusions were clearly open to it on the evidence and cannot be characterised as procedurally unfair.
Timing and relevance of PIPE proposal
34.The Applicant argues that the PIPE suggestion was raised too late and should have been introduced earlier in sentence planning.
35.This does not amount to a procedural unfairness in the parole hearing itself. The panel’s remit is to assess risk on the day of the hearing. It was entitled to consider the proposed alternative pathway, the reasons for the Applicant’s opposition to it, and the implications for risk reduction.
36.There is no procedural defect in the panel’s approach.
Ineffective representation
37.The Applicant criticises his legal representative for failing to question witnesses and for not raising concerns on his behalf during the hearing.
38.Panels are not responsible for the conduct of legal representatives. While poor representation may be regrettable, it will only render a decision procedurally unfair where it has caused a material injustice. The Applicant was present and had the opportunity to raise issues with the panel. The decision is grounded in wide-ranging and consistent evidence from professionals, not simply the absence of advocacy.
39.This ground does not meet the high threshold necessary for a finding of procedural unfairness.
Decision
41.Accordingly, the application for reconsideration is refused.
Stefan Fafinski
16 May 2025