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The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Kennedy, Application for Reconsideration by, [2025] PBRA 114 (28 May 2025)
URL: http://www.bailii.org/ew/cases/PBRA/2025/114.html
Cite as: [2025] PBRA 114

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[2025] PBRA 114

 

 

 

Application for Reconsideration by Kennedy

 

Application

 

1.   This is an application by Kennedy  (the Applicant) for reconsideration of a decision of a single member (paper) panel dated the 17 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 decision of the single-member and the application for reconsideration drafted by the Applicant's legal adviser.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 15 May 2025.

 

5.   The grounds for seeking a reconsideration are as set out below.

 

Background

 

6.   The Applicant is serving an extended sentence consisting of a determinate period of four years and an extended period of three years. The index offences were two offences of robbery. There was also a concurrent sentence of nine months imprisonment in relation to a theft conviction. The facts of the index offences were that the Applicant committed robberies by entering vehicles, threatening the drivers of the vehicles and demanding cash. The Applicant was aged 54 at the time of sentence he was aged 55 at the time of the panel members decision. This was the first review after the Applicant became eligible for parole.

 

Current parole review

 

7.   The referral from the Secretary of State (the Respondent) requested that the Parole Board consider whether the Applicant should be directed for release. The decision was by a single member of the Parole Board at the Member Case Assessment (MCA) stage of the referral. The single-member considered a dossier consisting of 193 pages and representations from the Applicant.

 

The Relevant Law

 

8.   The panel correctly sets out in its decision letter dated 17 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 considered the evidence.

 

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

 

  1. 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.

 

  1. 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;

(e)         the panel did not properly record the reasons for any findings or conclusion; and/or

(f)          the panel was not impartial.

 

  1. The overriding objective is to ensure that the Applicant's case was dealt with justly.

 

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

 

[Reconsideration as a discretionary remedy]

 

22.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

 

23. The Respondent made no representations.

 

Discussion

 

Ground 1

 

24.It is submitted on behalf of the Applicant that the panel were wrong to decline to direct an oral hearing despite the complexities of the Applicant's case.

 

Discussion

 

25.The Applicant is serving an extended sentence of imprisonment, his case was referred by the Secretary of State, to the parole board, to consider whether there should be a direction for release. The index offences were robbery and related to entering vehicles and making threats to the vehicle drivers, aggressively demanding money. The Applicant had committed earlier robberies and offences which parallelled the index offences. He had entered  vehicles and forced the owners under threat to drive to cashpoints and thereafter demanded cash. The background to the index offences appeared to be misuse of drugs and alcohol leading to emotional instability and offending.

 

26.At the time of the written decision of the panel, there had been an assessment which concluded that the Applicant would require, in terms of risk reduction,  to undertake an accredited programme. The programme  related to his risk of violence, following that program there would  be a period of consolidation followed by a psychological risk assessment to assess whether the Applicant's  risk could be managed in the community. The Applicant  was due to be referred and begin the programme in April 2025. As indicated, if completed  a consolidation period would follow, and thereafter a psychological risk assessment undertaken aimed at identifying  the effectiveness of the programme. In reality, therefore the sentence plan in  connection with the Applicant involved a period of time to undertake a behavioural programme and a period of time for assessment thereafter. The Applicant's risks were well understood and were listed by the panel member in the written decision. The  relevant suggested risk factors were listed at paragraph 1.6 of the decision.

 

27.The Applicant's COM did not support release, and took the view that the Applicant's risk could not be safely managed in the community at the time of the panel decision.

 

28.The panel member, within the decision, had considered the draft risk management plan, however the panel member considered that the plan was not sufficient to manage the Applicant's  risk in the community particularly in the light of the fact that the Applicant  had outstanding  risk related deficits in connection with that risk.

 

29.The panel member referred to the principles set out in the case of Osborn [2013] UKSC 61. The panel member considered that in the light of the outstanding treatment needs, and the need to address risk by a psychological risk assessment, an oral hearing would not be indicated at the time of the decision.

 

30.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 one,  if fairness to the prisoner required it. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; it  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.

 

31.In this case I find that there was no doubt about whether an oral hearing should be convened, as there was a clear pathway of intervention work and assessment before a realistic judgement could be made upon the Applicant's risk in the community. This was not a case where there was any discernible dispute about the facts of the allegations. In the light of the evidence in  the dossier, the panel's understanding of the Applicant's risk would not have been  improved by hearing from the Applicant,   until such time as he had undertaken behavioural work to address the outstanding risk factors. Whilst it is always desirable for a prisoner to participate in a hearing, in this case the participation would be unlikely to progress or change any decision, but would clearly be relevant and necessary once the Applicant had had an opportunity to address his outstanding risk factors. For these reasons, I do not find that the decision by the panel member to conclude the matter on the basis of the written documents to be irrational or procedurally unfair.

 

Ground 2

 

32.It is submitted on behalf of the Applicant,  that the panel were unfair in proceeding against the Applicant,  with a written decision before a full risk management plan had been completed.

 

Discussion

 

33.The context of this ground is that the COM in this case, indicated that the risk management plan would not be fully formulated because of the fact that the Applicant was about to undertake a behavioural intervention and would need to be assessed following that behavioural intervention. Accordingly, the risk management plan, which must be based upon an assessment of risk, could not be formally completed.

 

34.I do not find that this ground amounts to a procedural irregularity. The factual position was that the Applicant had concerning risk factors in relation to the risk to the public from robbery. Those risk factors had not been fully addressed, inevitably a realistic risk management plan could not be drafted until the Applicant had addressed those risks. There was a clear pathway to address those risks. Accordingly, I do not find that this ground amounts to a procedural irregularity.

 

Ground 3

 

35.It is submitted on behalf of the Applicant that the panel failed to give adequate weight to the Applicant's positive factors in particular; his employment as a barber and peer mentor; his engagement with substance misuse services and neuro diversity support; and his willingness to engage in a behavioural programme in the future.

 

Discussion

 

36.At paragraph 2.1 of the panel decision, the panel member confirms that account was taken of the fact that the Applicant worked as a barber, that he had gained a number of qualifications in prison indicating that he was able to undertake employment and training. Also acknowledged was the work that the Applicant  had undertaken with substance misuse services and with the neuro diversity services. These issues had not therefore been ignored, however it was a matter for the panel member to apply such weight as was felt appropriate to these issues,  in the light of the overall evidence relating to risk. It was also noted that there were negative factors relating to prison behaviour including an adjudication for a positive drug test, and concerning entries from the security department relating to suspicion associated with the handling of money and debt lists.

 

37.It is therefore clear that the panel member took reasonable account of the positive factors in relation to the Applicant. As indicated above it was for the panel member to reach a judgement on the weight to be applied to such positive factors. I do not determine that the panel member acted unfairly or irrationally in assessing these matters.

 

Ground 4

 

38.It is submitted that the panel based disproportionate emphasis upon the Applicant's previous criminal history.

 

Discussion

 

39.The Applicant's criminal record indicated that he had committed five separate offences of robbery or theft of the person. There are also offences relating to possessing a firearm and an offensive weapon. The Applicant's record spanned over a considerable period, however as noted in the panel members decision, the concern was the pattern of offending relating to theft from individuals and the use of threats and entering vehicles. In my determination it is not irrational for the panel member to have taken account of the pattern of offending as demonstrated by the Applicant's previous offending. It also appeared the case that despite periods of imprisonment, the Applicant had returned to risk related behaviour after release. For these reasons I do not determine that taking account of a pattern of behaviour, within the previous convictions, could be considered to be irrational or procedurally unfair.

 

Ground 5

 

40.It is submitted on behalf of the Applicant that the panel reached a premature conclusion and should have awaited the outcome of the behavioural programme and the subsequent psychological risk assessment.

 

Discussion

 

41.The rationale of this ground is that the matter should have been adjourned to await the outcome of the behavioural intervention and the subsequent consolidation period and psychological risk assessment.

 

42.The duty of the parole board pursuant to Article 5 (4) of the European Convention on Human Rights is to provide a speedy review of the prisoner's detention. Reviews must be delayed as little as possible. Parole board guidance, in relation to adjournments, indicates that adjournments should not normally be granted beyond a four-month period. Although a panel member is not bound by the guidance of the parole board, the guidance takes account of the fact that there is a requirement for a speedy review in law and the fact that adjourning without a realistic estimate of a date for completion of the outstanding issues would be incompatible with the legal requirement for a speedy review. In this case I am not persuaded that it was either irrational or procedurally irregular to conclude the matter on the basis of the evidence at the date of the panel decision.

 

Decision

 

43.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

28 May 2025

 

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