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The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Schofield, Application for reconsideration by, [2025] PBRA 122 (3 June 2025)
URL: http://www.bailii.org/ew/cases/PBRA/2025/122.html
Cite as: [2025] PBRA 122

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[2025] PBRA 122

 

 

 

Application for Reconsideration by Schofield

 

Application

 

1.   This is an application by Schofield (the Applicant) for reconsideration of a decision of single panel member dated the 15 April 2025 not to direct release.

 

2.   Rule 28(1) of the Parole Board Rules 2019 (as amended by the Parole Board (Amendment) Rules 2022) (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 application for reconsideration drafted by the Applicant's legal adviser, the decision of the panel member and the response by the Secretary of State (the Respondent).

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 23 May 2025.

 

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

 

Background

 

6.   The index offences in this case involve false imprisonment, section 20 wounding, possession of a firearm, section 47 assault occasioning actual bodily harm, and criminal damage. The index offence occurred in a former partner's home. There was a child present, as well as the former partner. The Applicant barricaded himself into the partner's home. He physically attacked the partner causing stab wounds and tried to strangle her. There was damage caused to the partner's home. The Applicant also took hold of the child while holding a gun. The Applicant refused to desist for many hours which involved a lengthy police intervention. The incident was extremely serious.

 

7.   The Applicant was aged 30 at the time of the incident and was aged 37 at the time of the panel decision. The Applicant was sentenced to an extended sentence of imprisonment of 17 years in total. The determinate proportion being 12 years with an extension of 5 years. He is eligible for conditional release in August 2029.

 

Current parole review

 

8.   The matter came before a single member for a Member Case Assessment (MCA) the panel member considered the evidence at the time of the MCA and concluded the matter on the papers. Representations had been received on behalf of the Applicant from the Applicant's legal adviser, a full dossier was considered as well as an up-to-date psychological risk assessment. The Secretary of State requested that the parole board consider whether the Applicant should be released.

 

 

The Relevant Law

 

9.   The panel correctly sets out in its decision letter dated 15 April 2025 the test for release and the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions.

 

Parole Board Rules 2019 (as amended)

 

10.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)).

11.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

 

12.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.

 

13.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."

 

14.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).

 

15.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.

 

16.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.

 

17.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

 

21.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.

 

22.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

 

23.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 if fairness to the prisoner requires one. The Supreme Court indicated that an oral hearing is likely to be necessary where the Board is in any doubt whether to direct one; they 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.

 

24.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

 

25.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

 

26.The Respondent offered no representations

 

Discussion

 

Ground 1

 

27.It is submitted on behalf of the Applicant that the panel acted irrationally in failing to secure a further psychiatric evaluation of the Applicant before concluding the referral.

 

Discussion

 

28.The position of a parole board panel in relation to referrals from the Secretary of State is that the panel are obliged to consider risk at the time of the referral. The panel is not entitled or required to become involved in sentence planning or assessments in the future.

 

29.The panel member had the benefit of a full psychological report. The panel member also had the benefit of the full dossier. The panel member noted that the Applicant had a poor history of compliance with probation orders and other court orders. His period in custody had not been without difficulties. Whilst in prison he was found to be in possession of cannabis and an illegal hard drive. There were also concerns noted by the single-member concerning historical intelligence reports relating to violence towards staff and other prisoners. The panel member noted that the Applicant had yet to complete any core risk reduction work to address his risk factors. The professional view was that any core risk reduction work had to be completed in custody. A  psychological risk assessment, undertaken in advance of the panel decision, indicated that the Applicant presented with a high level of treatment need and a high risk of future violence both generally and towards partners. It was suggested, by the reporting psychologist, that the Applicant was likely to require a high intensity intervention. The panel member considered whether the matter should be adjourned upon the suggestion by the psychologist of a further psychiatric report . The panel member took the view that any psychiatric assessment would be part of a sentence plan. As indicated earlier the role of the parole board when assessing referrals does not entitle the parole board to be concerned with future sentence planning. For this reason, I am not persuaded that the panel's decision to conclude the matter without adjourning for a psychiatric report could be considered to be irrational or procedurally unfair.

 

Ground 2

 

30.It is submitted on behalf of the Applicant that the panel made an error of law in that it failed to apply the public protection test correctly. It is submitted that the panel relied upon historic behaviour and untested assumptions about future risk and failed to explore the Applicant's potential for change. In general it is submitted that the panel failed to make an overall and holistic assessment of the Applicant's risk.

 

Discussion

 

31.In assessing the Applicant's  risk the panel member referred to the history of violence as recorded in the dossier, which related to the Applicant. There were offences of assault occasioning actual bodily harm, assaulting police and battery offences. There were also convictions for affray, attempted arson, possession of offensive weapons and possession of explosives. In my determination the panel were entitled to consider the Applicant's  history when making an overall assessment of the risk of serious harm. A second concern relating to the Applicant was a history of non-compliance by breaching court orders. Thirdly the Applicant's history indicated that there had been examples of serious violence towards partners. The index offence involved an incident where the Applicant barricaded himself in the home of a former partner where a child was present. There was violence used towards the partner. When police arrived at the partner's premises the Applicant had a child in his arms and was holding a gun. An incident over some hours then ensued, with the police present and  attempting to persuade the Applicant to desist. The incident was extremely serious.

 

32.It was also noted, by the panel member, that during the Applicant's  prison sentence he had been involved in an incident with a fellow inmate which resulted in throwing hot water over a prisoner.

 

33.As indicated above there was no evidence of the completion by the Applicant of any core risk reduction work to address the risk factors and the risk. The psychological report referred to above indicated a high level of treatment need and a high risk of future violence both generally and towards partners.

 

34.In the circumstances, I am not persuaded that the panel member misapplied the public protection test. The panel member assessed risk and was entitled to take into account both historic risk and the absence of evidence of addressing that risk. There was also relevant evidence of a continuation of the risk related behaviour whilst in prison. The panel member assessed the risk management plan but agreed with the Community Offender Manager that the plan could not manage the Applicant's risk. The basis of the conclusion relating to the risk management plan was that, although there were external measures of control suggested within the plan, the panel found no evidence that the Applicant himself had the necessary internal controls to manage his own risk, for that reason the panel found that the risk management plan was insufficient to manage the risk to the public and others.

 

35.In the circumstances I am therefore not persuaded that the test for release was misapplied and therefore do not find that there was an error of law in this case.

 

Decision

 

36.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

3 June 2025

 

 

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