[2025] PBRA 110
Application for Reconsideration by Clarke
Application
1. This is an application by Clarke (the Applicant) for reconsideration of a decision of the Parole Board on 17 February 2025 not to direct his 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 papers comprise:
a. The dossier now comprising 232 pages including the decision letter (DL) the subject of this application.
b. The Grounds (dated 23 April 2025) submitted on behalf of the Applicant in support of the application.
Background
4. The Applicant is now 60 years old. In December 2013 he was sentenced to an extended determinate sentence of 8 years 8 months with 5 years extended licence for wounding with intent under Section 18 of the Offences against the Person Act 1861. In March 2022 he was released on licence but recalled to prison in April 2022. In March 2023 he was again released but recalled to prison in July 2023. On 21 October 2024 he was released for a third time but on 3 December 2024 his licence was again revoked and he was returned to prison the next day. On 17 February 2025 a Parole Board (PB) member issued a decision declining to order his release. A subsequent application on his behalf for an oral hearing to be convened was refused by a decision of 31 March 2025. His sentence will expire in April 2027.
Request for Reconsideration
5. The grounds for seeking a reconsideration of the case submitted by the Applicant’s legal representative are set out below:
The Grounds are set out in full - insofar as they relate to the decision whether to order a reconsideration of the case. I have added numbering for ease of reference.
“
1) We represent the above named who seeks reconsideration of the Parole Board’s decision not to release him dated 17 February 2025 (distributed 19 February 2025) which became final after our application for an oral hearing was refused by decision dated 31 March 2025 which was received on the 3 April 2025.
2) [The Applicant] is an extended sentence prisoner with a sentence expiry date of 24 April 2027. There is therefore a considerable period of his detention under review. This alone, adds to the case that there is merit in an oral hearing and to conclude the matter on the papers would be disproportionate to the harm caused to him and thereby unfair to [the Applicant].
3) He had recently been released following a successful oral parole hearing but recalled shortly afterwards for drinking alcohol, attending a pub and failing to keep in touch with Probation.
4) Of the three breaches of licence alleged, the latter one was disputed by [the Applicant]. Both the position taken by Probation in terms of the level and nature of his current risks of committing serious harm and their manageability in the community were disputed by [the Applicant]. The impact on risk management of the breaches of licence condition were also challenged.
5) The request for an oral hearing was refused for the following stated reasons.
“The Duty Member found that there is no new information in the oral hearing request that is not contained in the dossier to indicate that [the Applicant’s] position is any different to that considered by the MCA Panel.
In particular, the oral hearing request does not provide an update to establish that [the Applicant]has addressed his alcohol misuse or any indication of reduced risk linked to this risk factor. The Duty Member considered the Principles set out in the case of Osborn, Booth & Reilly [2013] UKSC 61 concerning oral hearings, and determined that with issues of risk linked to alcohol misuse being outstanding, and for the purposes of public protection, [the Applicant’s] risk has been assessed as fully and fairly as possible currently, and an oral hearing is not required at this stage to do so. The Duty Member concludes that the representations from [the Applicant]do not materially affect the position, taking the provisional MCA paper provisional decision into account”.
This essentially treats the Request for an Oral Hearing as an appeal limited to considering new information or new grounds, which Osborn clearly explicitly rejects.
“x) “Paper” decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate”.
Osborn, Booth & Reilly [2013] UKSC 61
It assumes that unless one meets the objection to release stated by the MCA member than the application for an oral hearing must fail. This again, fails the test in Osborn.
The test for an oral hearing or release is not whether there are outstanding areas of risk but whether it is fair to [the Applicant] to grant an oral hearing to advance his case for release and whether or not those areas of risk require him to be further detained or whether they are manageable in the community subject to appropriate risk management.
The law in respect of when an Oral Hearing ought to be granted was set out comprehensively in the request for an oral hearing in which we quoted at length from the judgment of Lord Reed in R (Osborn) v Parole Board [2014] AC 1115 as well as subsequent cases which supplement the decision.
The circumstances in which an oral hearing should be held were applied to the facts in [the Applicant’s] case in our application for an oral hearing. Neither the MCA Panel Member nor the Duty Member addressed them in their decision which suggests they failed to fully consider them or take them into account.
6) [The Applicant] was released following a successful parole oral hearing which took place on 30th August 2024. He was recalled on the 3rd December 2024 having been released on the 21st October 2024 following approximately 1 ½ months on licence. He was recalled for drinking alcohol, which is a known risk factor of his, breaching the licence condition to attend a public house and failing to attend probation.
He denies failing to attend probation and offers a factual account that contextualises the situation not as one of non-engagement but as a constructive agreement between him and his Community Offender Manager that it would have been inappropriate to meet on that day but they would reconvene when he was sober. There was no refusal by [the Applicant] to attend the probation meeting.
This is a clear evidential dispute. The panel member records this issue in the following terms:
“He had spoken to his COM and informed them that he would not be attending an appointment as he was drinking alcohol (5 pints and 1 short), in a public house”.
Despite this being flatly denied in legal representations, there is no attempt to consider [the Applicant’s] version of events which was that he rang his COM and reported that he had drank alcohol. He was also open about the fact that he had breached his licence condition by being in a pub. He was not seeking to hide that he had failed and wished to be open and honest with COM as he understood the need to build trust. His COM suggested it was better that they reconvene to another day when he was sober.
The Panel member has clearly rejected [the Applicant’s] account without giving reasons as it can be reasonably assumed he has preferred the official version of events to that of a prisoner without seeking to test the evidence and the credibility of [the Applicant’s] explanation. This is also a breach of the requirements in Osborn.
7) Furthermore, it was neither the understanding at the recent oral hearing nor presented as the future method of risk management in his OASys that he be recalled as soon as he has lapsed into a single event of alcohol use. He has an known alcohol problem and like many addicts this does not mean he cannot be managed in the community. The Parole Board released him, not in the expectation that he may never lapse but in the belief that the Risk Management Plan could manage any risk of serious harm. Whether it could, short of recalling him is clearly another area in dispute, requiring testing in oral evidence.
8) [the Applicant] has been released on licence several times without causing serious harm on any of his licence periods. He has not used physical violence on any release.
9) He has taken much from the circumstances of his recall in terms of reevaluating his approach to maintaining sobriety in the community.
10) Since he has returned to custody, he has responded positively and continued to work towards his rehabilitation and relapse prevention including undertaking work of relapse prevention in regard to alcohol.
11) It should be noted that he has not committed an offence of violence since 2013 and he has done a vast array of accredited behaviour work to a good standard to reduce risk.
12) He is by and large a model prisoner when returned to custody, applying himself positively and trying to learn from his experiences and that has, no doubt, played a part in why several Parole Board’s have released him. He is also very committed to over-coming his problems.
13) Several Parole Panels having heard from [the Applicant] and those managing him, in oral evidence, have concluded that his risks can be managed in the Community. This single MCA panel member has concluded to the contrary having only read summarily about his offending and his insight, without hearing from his or the witnesses direct nor testing the evidence.
14) The Panel Member found there to be sufficient information available within the dossier to make an informed decision about his risks and their management, despite some of the information relied on being contested.
They commented :
“When reviewing the case, the Panel has found there to be sufficient information available within the dossier to make an informed decision about risk”.
Having sufficient information to make an informed decision about risk on the papers, is not the test for an oral hearing as laid down in the Supreme Court judgment of Osborn, Booth & Reilly [2013] UKSC 61.
15) The Panel stated that they considered whether an oral hearing would assist in assessing the risk posed and concluded that in this case it would not. This is despite other recent panels finding that the risk [the Applicant] did pose was manageable in the community and noting the impact of the vast array of offending behaviour work he has undergone since his last offence over a decade ago.
16) None of the behaviour contained in this recall was unknown to previous panels in terms of the risk posed by him or how it could be managed. They were all familiar with similar behaviour exhibited by him, in fact his behaviour has been worse on previous releases but after subjecting him and his witnesses to appropriate scrutiny at an oral hearing they felt able to direct release.
17) Panels may differ in their opinions but compelling reasons should be given other than the plain fact of disagreement especially where previous panels have benefitted from hearing oral evidence and familiarised themselves with the person subject to the risk assessment, face to face.
18) The MCA Panel also stated that they considered [the Applicant’s] legitimate interest in participating in the process and whether there were tenable grounds to suggest that an oral hearing was necessary to allow him to effectively put his case. No reasons were given for dismissing his legitimate interest in participating.
19) The law in respect of when an Oral Hearing ought to be granted, is well settled and we refer directly to the judgment of Lord Reed in R (Osborn) v Parole Board [2014] AC 1115:
In order to comply with common law standards of procedural fairness, the board should hold an oral hearing before determining an application for release, or for a transfer to open conditions, whenever fairness to the prisoner requires such a hearing in the light of the facts of the case and the importance of what is at stake.
By doing so the board will also fulfil its duty under section 6(1) of the Human Rights Act 1998 to act compatibly with article 5(4) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, in circumstances where that article is engaged.
ii) It is impossible to define exhaustively the circumstances in which an oral hearing will be necessary, but such circumstances will often include the following:
a)Where facts which appear to the board to be important are in dispute, or where a significant explanation or mitigation is advanced which needs to be heard orally in order fairly to determine its credibility. The board should guard against any tendency to underestimate the importance of issues of fact which may be disputed or open to explanation or mitigation.
b) Where the board cannot otherwise properly or fairly make an independent assessment of risk, or of the means by which it should be managed and addressed.
c) Where it is maintained on tenable grounds that a face to face encounter with the board, or the questioning of those who have dealt with the prisoner, is necessary in order to enable him or his representatives to put their case effectively or to test the views of those who have dealt with him.
d) Where, in the light of the representations made by or on behalf of the prisoner, it would be unfair for a “paper” decision made by a single member panel of the board to become final without allowing an oral hearing: for example, if the representations raise issues which place in serious question anything in the paper decision which may in practice have a significant impact on the prisoner’s future management in prison or on future reviews.
iii) In order to act fairly, the board should consider whether its independent assessment of risk, and of the means by which it should be managed and addressed, may benefit from the closer examination which an oral hearing can provide.
iv) The board should also bear in mind that the purpose of holding an oral hearing is not only to assist it in its decision-making, but also to reflect the prisoner’s legitimate interest in being able to participate in a decision with important implications for him, where he has something useful to contribute.
v) The question whether fairness requires a prisoner to be given an oral hearing is different from the question whether he has a particular likelihood of being released or transferred to open conditions, and cannot be answered by assessing that likelihood.
vi) When dealing with cases concerning recalled prisoners, the board should bear in mind that the prisoner has been deprived of his freedom, albeit conditional.
vii) The board must be, and appear to be, independent and impartial. It should not be predisposed to favour the official account of events, or official assessments of risk, over the case advanced by the prisoner.
viii) The board should guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense.
ix) The board’s decision, for the purposes of this guidance, is not confined to its determination of whether or not to recommend the prisoner’s release or transfer to open conditions, but includes any other aspects of its decision (such as comments or advice in relation to the prisoner’s treatment needs or the offending behaviour work which is required) which will in practice have a significant impact on his management in prison or on future reviews.
x) “Paper” decisions made by single member panels of the board are provisional. The right of the prisoner to request an oral hearing is not correctly characterised as a right of appeal. In order to justify the holding of an oral hearing, the prisoner does not have to demonstrate that the paper decision was wrong, or even that it may have been wrong: what he has to persuade the board is that an oral hearing is appropriate.
xi) In applying this guidance, it will be prudent for the board to allow an oral hearing if it is in doubt whether to do so or not.
20) The above is essentially, the framework against which any application for Oral Hearing is judged. Subsequent cases have added an element of nuance to the above test, however, the substantive test remains the same.
We refer in particular to the following case;
In R (Somers) v The Parole Board EWHC 1160 (admin), Mrs Justice Foster DBE notes as follows:
“Lord Reed further held that in assessing whether procedural fairness required an oral hearing, a court must determine for itself whether a fair procedure was followed and he drew particular attention to the need to avoid a sense of injustice in a prisoner, derived from the lack of opportunity to contribute:
"This aspect of fairness in decision-making has practical consequences of the kind to which Lord Hoffmann referred. Courts have recognised what Lord Phillips of Worth Matravers described as "the feelings of resentment that will be aroused if a party to legal proceedings is placed in a position where it is impossible for him to influence the result" Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269, para 63
In the present context, research has established the importance attached by prisoners to a process of risk assessment which provides for their contribution to the process (see Attrill and Liell, "Offenders' Views on Risk Assessment", in Who to Release? Parole, Fairness and Criminal Justice (2007), ed Padfield).”
Further, “In any event, whether or not the Claimant makes an application to be released or states an intention one way or the other the Defendant has a statutory duty to make a decision as to suitability for release necessarily therefore Article 5(4) is engaged. The likelihood of a release is not relevant when assessing whether or not to hold an oral hearing.
Further, Article 5(4) is not of direct relevance to the Claimant noting R (on the application of Whiston) v Secretary of State for Justice [2014] UKSC 39, however, the principle of fairness and the “need for a hearing to satisfy the entitlement of a prisoner to a fair consideration of his position” remains a relevant consideration.
In the subsequent authority of R (on the application of McKilligan) v The Parole Board of England Wales [2024] EWHC 336 (Admin) HHJ Judge Belcher drew further attention to what might be categorised as the ‘outcome focus’ of any oral hearing.
“The Decision is clearly focused on the possible outcome of an oral hearing. The Decision refers to there being no merit in an oral hearing "..at this stage..", as once the 1:1 work has been concluded an updated Psychological Risk Assessment will be required to determine if further interventions are required, or if there is support for progression. The Member, therefore, concluded "…that directing an oral hearing at this time would be premature". In my judgment this approach fails to address the correct issue as identified in Osborn (per Lord Reed at [29(x)]. The Claimant did not have to demonstrate that the paper decision was wrong, or even that it may have been wrong. The issue is whether an oral hearing was appropriate. By considering, indeed focusing on the potential outcome of an oral hearing, in my judgment the Decision fails to specifically address the relevant issues set out in Osborn.
Further at [38]:
“…In my judgement no good reason has been put forward by the Parole Board for not holding a hearing in the Claimant's case. The Decision has focused on the outcome and in doing so has failed to address the central fundamental question outlined in Osborn , namely whether fairness called for an oral hearing, and has failed to consider which elements of the Claimant's case might or might not call for an oral hearing, by reference to the guidance give in Osborn.”
Again therefore, the position is clear in terms of when an Oral Hearing ought to be granted, and it is further clear that the ‘outcome’ of any such hearing is an irrelevancy and not something that ought to be taken into account.
21) Of relevance at this juncture is the point at wherein the impugned decision notes there to “be sufficient information available within the dossier to make an informed decision about risk”. Again this is not the correct test to apply, whether the Panel feel it has relevant information is not determinative, it is what is fair to the Claimant; [the Applicant] wishes to advance his case and his application for release orally, for his case to be fairly considered with the benefit of his oral evidence and the evidence of those managing him as to potential risk management plans. Without that opportunity, he is left with a feeling of being sidelined, an outcome which Osborn warns against in assessing the fairness of concluding on the papers.
Furthermore :
22) [the Applicant] denies that he breached one of the licence conditions. The only reason for the Panel to prefer an assumption made by Probation to the evidence of [the Applicant] would be because they were professionals and he was a prisoner, which is an unsafe and unfair method of deciding on the facts. Where there is a conflict of evidence the Panel ought to have had heard from the parties or sought further clarification. It was a material issue given that it went to whether [the Applicant] had breached one of his licence conditions and his likely compliance and willing to work with professionals if re-released.
There is therefore what we would submit to be a clear and obvious dispute of fact in terms of the basis for the recall.
23) The second impugned decision, that of the Duty Member, having considered the aforesaid legal representations approached the role of the Duty Member as not being to re-review the case and the findings of fact made by the original panel member, but to determine whether the points made in the further submissions make a material difference to the information that was available and considered by the panel.
“The Duty Member concludes that the representations from [the Applicant] do not materially affect the position, taking the provisional MCA paper provisional decision into account”.
24) This is seemingly reading in an extra limb of the test and in doing so, not applying the correct test.
The test is not a ‘material difference’ test, but rather, the common law fairness test.
We would therefore argue that the Panel has misdirected itself in terms of the law.
25) Secondly, the decision is at odds with the test per Osborn, for the reasons outlined above.
There is a clear error of law in the that the Panel and the Duty Member has misdirected themselves as to the test that ought to be applied.
26) Further, there is a procedural error in that the decision offends the common law concept of procedural fairness.
27) The matter ought to be reconsidered and [the Applicant’s] sent to an oral hearing to further his release application if he is not released on the papers.”
Current parole review
6. Following the Applicant’s most recent recall the case was referred to the Parole Board by the Secretary of State for Justice (the Respondent).
The Relevant Law
Parole Board Rules 2019 (as amended)
7. Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration. This is an eligible decision.
Irrationality
8. In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin), the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said, at paragraph 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.”
9. This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374. The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing “irrationality”. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.
10.DSD is an important case in setting out the limits of a rationality challenge in parole cases. Since then another division of the High Court in R (on the application of Secretary of State for Justice v Parole Board [2022] EWHC 1282 Admin) (the Johnson case) adopted the “more modern” test set out by Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin).
11.In the Wells case Saini J set out “a more nuanced approach” at paragraph 32 of his judgment when he said:
“A more nuanced approach in modern public law is 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”.
12.This is not a different test to the Wednesbury reasonableness test. In the Wells case Saini J emphasised at paragraph 33 that “this approach is simply another way of applying” the Wednesbury irrationality test.
13.What is clearly established by all the authorities is that it is not for the reconsideration member deciding an irrationality challenge on a reconsideration - or a judge dealing with a judicial review in the High Court - to substitute his or her view for that of the panel who had the opportunity to see the witnesses and evaluate all of the evidence. It is only if a reconsideration member considering the application decides that the decision of the panel did not come within the range of reasonable conclusions that could be reached on all of the evidence, that he or she should allow the application.
14.Panels of the Board are wholly independent and are not obliged to adopt the opinions or recommendations of professional witnesses. The panel’s duty is clear and it is to make its own risk assessment and to evaluate the likely effectiveness of any proposed risk management plan. That will require a panel to test and assess the evidence and decide what evidence they accept and what evidence they reject.
15.Once that stage is reached, following the guidance provided by such cases as Wells a panel should explain its reasons whether or not they are going to follow or depart from the recommendation of professional witnesses.
16.The giving of reasons by a decision maker is “one of the fundamentals of good administration” (Breen v Amalgamated Engineering Union [1971] 2 QB 175). When reasons are provided, they may indicate that a decision maker has made an error or failed to take a relevant factor into account. As I understand the principles of public law engaged in deciding this application, an absence of reasons does not automatically give rise to an inference that the decision maker has no good reason for the decision. Neither is it necessary for every factor to be dealt with explicitly for the reasoning to be legally adequate in public law.
17.The way in which a panel fulfils its duty to give reasons will vary depending on the facts and circumstances in any particular case. For example, if a panel is intending to reject the unanimous evidence of professional witnesses then detailed reasons will be required. In Wells at paragraph 40 Saini J said:
“The duty to give reasons is heightened when the decision maker is faced with expert evidence which the panel appears, implicitly at least, to be rejecting”.
18.When considering whether this decision is irrational, I keep in mind that it is the decision of the panel who are expert at assessing risk. As I have already observed, it is extremely important that I do not substitute my judgment for theirs. My function is to decide whether the panel in this case erred in law or reached a decision that was ‘Wednesbury unreasonable’ and/or procedurally unfair in some respect.
Procedural unfairness
19.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.
20.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.
21.The overriding objective is to ensure that the Applicant’s case was dealt with justly.
Other
22.It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion: “there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.” See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “objectively verifiable evidence” of what is asserted to be the true picture.
23.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."
The reply on behalf of the Secretary of State
24.The Respondent has offered no representations in respect of this application.
Discussion
25.Grounds 1-3 accurately ‘set the scene’ for the application. The case had been referred to the PB by the SoSJ following alleged breaches of his licence.
26.Ground 4 points out that one of the three breaches of licence alleged was disputed.
27.Ground 5 consists of what is effectively an appeal against the decision to not order an oral hearing and praying in aid the case of R(Osborn) v Parole board [2014] AC1115. This decision (under Rule 20 of the PB Rules) is not the subject of the Rule 19 procedure. See in particular the decided cases of
Senior, Application for Reconsideration [2025] PBRA 95 (09 May 2025)
and
Batchelor, Application for Reconsideration [2025] PBRA 21 (23 January 2025)
It is the case that another decision - Khan, Application for Reconsideration [2024] PBRA 200 (15 October 2024) seems to point the other way but it is clear to me that the two decisions (under rules 19 and 20) are different and thus mutually exclusive. What is amenable to an application for reconsideration under Rule 28 is the actual decision to release or not to release an offender made by a PB panel under rule 19. I have therefore focused on any of the substantive grounds alleging that the eventual decision was “irrational”.
28.Ground 6 sets out the nature of the disputed issue concerning one of the reasons for the recall, namely the possible contact between the Applicant and his Community Offender Manager (COM) before the recall was instituted. In essence it seeks to put a more favourable complexion on the contents of a telephone call between the Applicant and his COM concerning his failure to attend an appointment than the DL did. The alleged differences of opinion as to the terms of the conversation have little or no relevance to the rationality of the decision. What is clear is that the Applicant was - as he well knew - in breach of his licence conditions.
29.Ground 7 suggests by inference that the licence conditions imposed contained an actual or implicit ‘clause’ indicating that licence would not be revoked after the first breach of a licence condition. This is an extraordinary contention which I have no hesitation in rejecting. Licence conditions are clear. Any breach renders the offender liable to recall since each condition is imposed in order to eliminate the risk that the offender may cause serious harm.
30.Grounds 8 and 9 have no relevance to the question of the rationality of the decision.
31.Ground 10 does not make it clear what the work done in the weeks between his recall and the date of the decision under challenge was and why it was irrational of the panel which was considering the case not to consider it. In essence this is a ground in support of the decision not to grant an oral hearing which is not amenable - see above - to the Rule 28 reconsideration procedure.
32.Ground 11 correctly states the position concerning the criminal record of the Applicant since 2013 but ignores the matters referred to in the dossier at page 215-6 concerning violent or threatening behaviours.
33.Ground 12 is noted but has little or nothing to do with the decision made by the PB concerning his release. And an offender’s assertions as to his intentions have no place in grounds of an application for reconsideration.
34.Grounds 13-27 revert in different ways to what is the ‘essence’ of this application, namely that the decisions not to hold an oral hearing and the rejection of the ’appeal’ under Rule 20 were flawed.
a. Ground 13 refers to the fact that “several” previous PB panels have directed release and suggests that this fact should have resulted in another oral hearing. In fact his release has twice previously been directed by a PB panel and he was recalled within two months on the first occasion and within four months on the second. However, this ground - essentially complains of the decision not to order an oral hearing - is not relevant to this decision - see paragraph 8 above).
b. Ground 14 seems to suggest that on principle if a factual statement in a dossier is disputed the result should always be an oral hearing. In this case there had been an admitted sequence of events which had resulted in recall even if the exact sequence was disputed. In any event as has already been made clear (see paragraph 27 above) the decision to direct or not direct an oral hearing is not amenable to the reconsideration procedure.
c. Grounds 15-21 again focus on the question of whether an oral hearing should have been held in particular with regard to the fact the previous panels who had directed release had done so following an oral hearing and that there is one incident of those which prompted the recall which is disputed. To repeat, that decision is not one which is amenable to the reconsideration process. In fact the Applicant’s stance in relation to the incidents which led to his most recent recall are well summarised in the reports of the POM at page 30 and the COM at page 116-7 of the dossier. This latter report concludes with a clear recommendation that his risk is such that release would not be appropriate at this time.
35.In summary the application does not in effect take issue with the rationality of the decision, merely with the rationality of the prior decision not to direct an oral hearing at which, it is submitted, the matters in dispute might have been resolved in the Applicant’s favour.
36.I have studied the terms of the DL and found no evidence of “irrationality” within it. It is clear that the decision maker had studied the dossier - in which the two professional witnesses opposed release- and considered the submission of the legal representative - repeated within these grounds - that there should be flexibility shown around the Applicant’s breaches of his licence conditions and was entitled to conclude as it did in its conclusion that any consumption of alcohol “increases the risk of violence from [the Applicant]”.
37. The complaint of “procedural unfairness” is confined to the question of whether an oral hearing should have been directed under rule 20 and therefore not amenable to the reconsideration process.
Decision
38.Accordingly this application is refused.
Sir David Calvert-Smith
22 May 2025