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The Parole Board for England and Wales


You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Reid, Application for Reconsideration by, [2025] PBRA 124 (13 June 2025)
URL: http://www.bailii.org/ew/cases/PBRA/2025/124.html
Cite as: [2025] PBRA 124

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[2025] PBRA 124

 

 

 

Application for Reconsideration by Reid

 

 

Application

 

1.   This is an application by Reid (the Applicant) for reconsideration of a decision of the Parole Board following an oral hearing on 6 May 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 1049 pages including the decision letter (DL) the subject of this application.

 

b.    The Grounds submitted on behalf of the Applicant in support of the application. The Secretary of State (the Respondent) did not submit representations for the purposes of this application.

 

Background

 

4.   The Applicant is now 48 years old. In December 2008 he received a sentence of imprisonment for public protection for an offence of sexual assault, his 'tariff' expired in December 2010. In March 2011 he was sentenced to life imprisonment for offences of rape x 2 as well as escaping from custody and attempted escape. His 'tariff' expired in March 2017. His case was considered at an oral hearing in August 2021 and the panel made no direction for release.

 

Request for Reconsideration

 

5.   This is contained in an undated document submitted on the Applicant's behalf by his legal representative. It sets out some of the history of the case. In summary the case was again referred to the Board in July 2022. It was scheduled for hearing in December 2023. The case was adjourned because of the illness of a panel member until November 2024 and again, at the Applicant's request, until 6 May 2025.

 

6.   The document contains 57 paragraphs. The Grounds may be summarised as follows (direct quotations from the Grounds in italics):

                      i.    (Paragraphs 7-38). These paragraphs all concern the absence from the hearing of the Applicant's previous Community Offender Manager (COM). The panel fell into error when it refused, both on paper and later at the adjourned oral hearing in November 2024 and at the hearing the subject of this application, to direct the attendance of the Applicant's previous COM (IW). The refusal was both procedurally irregular and resulted in the eventual decision being "irrational".

                     ii.    The panel compounded the error suggested above when it refused the Applicant's application at the hearing on 6 May 2025 to stand down the COM (GB) who had taken over from IW as a witness but had since stood down as his COM and to hear instead only from the recently appointed COM (AO).

                    iii.    The panel's conclusion that it had sufficient evidence within the dossier concerning the role of IW and the relevance of her assessment of the Applicant at the time of her time as his COM was irrational. In particular certain "1:1" risk reduction work undertaken at the time she had been his COM should have been studied by the panel.

                    iv.   The ground cites the decision in The King (on the application of Mina Dich) and Parole Board for England and Wales and the Secretary of State for Justice [2023] EWHC 945.  

"In Dich, the High Court emphasised that where there are significant factual disputes or where the credibility of key evidence is in question, the Parole Board must allow for oral evidence to be given and tested. The failure to do so risks depriving the panel of the best evidence and undermines the fairness and integrity of the decision-making process."

"In summary, reliance solely on the written dossier is insufficient where the evidence is contested and where oral testimony is necessary to resolve material disputes. The refusal to permit [IW] to attend and give evidence has therefore resulted in a procedurally unfair process, contrary to both common law and the principles set out in Dich."

                     v.   The recent second change of COM should have led to the conclusion that IW should after all have been called to give evidence since the situation was now different from that which pertained at the time of the original application and refusal.

                    vi.   In taking the decisions that it did the panel acted inflexibly and not in the interests of justice.

"In summary, the refusal to entertain further applications regarding [IW's] attendance, despite significant changes in the case, risks both fettering the panel's discretion and undermining the fairness of the proceedings. The Board is respectfully invited to reconsider its position in light of these changed circumstances and the ongoing duty to ensure a fair hearing.

"The importance of [IW's] oral evidence is further underscored by the demonstrable impact her direct conversations had on the recommendations of other professionals involved in [the Applicant's] case. Those witnesses who engaged with [IW] and discussed the 1:1 risk reduction work she delivered were supportive of [the Applicant's] progression to release. Their support was informed by a first-hand understanding of the interventions, the context in which they were delivered, and the progress [the Applicant] made under [IW's]' supervision." The panel's decision deprived it of the opportunity to weigh the importance of the work done while [IW] had been the COM.

                  vii.   The decision of the panel to receive closing submissions on the Applicant's behalf in writing after the hearing rather than orally at its conclusion amounted to a procedural irregularity such as to render the proceedings procedurally unfair.

Current parole review

 

7.   Following the Applicant's recall the case the case was referred to the Parole Board by the Respondent.

 

The Relevant Law

 

8.   The panel correctly sets out in its decision letter 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)

 

9.   Rule 28(1) of the Parole Board Rules provides the types of decision which are eligible for reconsideration.  This is an eligible decision.

 

Irrationality

 

10.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.

 

11.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."

 

12.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).

 

13.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.

 

14.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.

 

15.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

 

16.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.

 

17.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.

 

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

 

Other

 

19.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

                                                                                   

20.The Respondent has offered no representations in respect of this application.

 

Discussion

 

21.In considering the grounds I asked for and have listened to the recording of the hearing which lasted more than 5 hours during which evidence was heard from 7 witnesses including the Applicant himself.

 

22.The Applicant's principal complaint concerns the panel's decision not to require the attendance of IW and the possibility that that refusal was procedurally flawed and/or led in due course to an irrational decision not to release the Applicant. It was clear from the evidence that the Applicant has real problems dealing with professionals. Once he has formed a view that they are mistaken his willingness to engage with them diminishes significantly. The panel was of course concerned with the situation before it at the time of the hearing and into the future. While the work done with IW was clearly positive, and is so recorded in the DL, it was the current group of witnesses who were responsible for making recommendations to the panel, and who would - in the case of the COM - be responsible for overseeing his compliance with licence conditions.

 

23.By the time of the hearing the COM who had taken over the case from IW had been replaced by a third COM. Both the latter gave evidence at the hearing. The second COM had only a brief period as COM from the latter half of 2024 until January 2025 but had compiled the pre-sentence report on him at the time of his conviction in 2008. The current COM was unwilling to make a recommendation to the panel in view of the limited time he had had to assess the risk the Applicant may still pose. While this change in personnel was unfortunate - and no fault of the Applicant of course - the panel had to deal with the situation as it presented itself against the background that the case had first been referred to the Board nearly 3 years earlier. Understandably perhaps no application was made on the Applicant's behalf for a further adjournment following the evidence of the newly appointed COM.

 

24.The panel was thus faced - as panels often are - with differing recommendations from those prepared to offer an opinion.

 

25.It is right to add, although the psychological evidence is not directly the subject of this application, that there was a division of opinion between the prison psychologist and the two psychologists called to give evidence by the Applicant. The former's "strong recommendation" was against a direction for release whereas the two psychologists called on behalf of the Applicant recommended his release. Their evidence is accurately summed up at some length at paragraphs 2.3-2.19 and 2.50-2.80 of the DL.

 

26.I have considered the relevant paragraph (4) of the DL in which the conclusion it reached and the reasons for it are set out. I find no irrationality in the careful and accurate way in which those conclusions are set out.

 

27.While there were a number of matters which went to the Applicant's credit, such as his good behaviour in prison, the work he had done while IW was his COM, and his continuing positive relationship with close family members including his now elderly mother, it is clear from the DL that the panel took due account of these.

 

28.In short therefore I find no irrationality in the DL, which, fully and accurately, summarises the evidence given and clearly explains the reasons for its eventual decision such as to trigger an order for reconsideration.

 

29.In the vast majority of hearings now conducted by the Board in which an offender has been legally represented the concluding remarks are sent in after the legal representative has had time to reflect on the evidence given and - if necessary - spoken to the offender concerning their content. While it is understandable that an offender such as the Applicant in this case who has a very clear - and somewhat rigid - cast of mind might wish to have the submissions to be made on his behalf made at once, the chances of the legal representative being able to summarise and  present appropriate submissions based on the oral evidence of 3 psychologists, 2 COMs, the Prison Offender Manager and the Applicant lasting more than 5 hours together with the relevant contents of a dossier numbering more than 1000 pages immediately after the last witness has concluded their evidence are slight. Since the 'regular procedure' is now to ask for such submissions in writing following the hearing and no particular reason was put forward at the time, or has been put forward since, as to why in this case what is now the normal process should not have been followed I conclude that the panel's decision in this respect was not 'procedurally unfair'.

 

Decision

 

30. Accordingly, this application for reconsideration is refused.

 

Sir David Calvert-Smith

13 June 2025

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