[2025] PBRA 51
Application for Reconsideration by Page
Application
1. This is an application by Page (the Applicant) for reconsideration of a decision dated 01 February 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 521 numbered pages), and the application for reconsideration.
Background
4. The Applicant received an extended sentence comprising a ten year custodial period with a six year extension following conviction on two counts of rape.
5. The Applicant was 23 years old at the time of sentencing and is now 32 years old.
6. Key dates relevant to his sentence are reported to be:
a. Parole eligibility date: July 2022;
b. Conditional release date: November 2025; and
c. Sentence expiry date: November 2031.
Request for Reconsideration
7. The application for reconsideration has been submitted by solicitors on behalf of the Applicant and pleads irrationality.
8. This is supplemented by written arguments to which reference will be made in the Discussion section below.
Current Parole Review
9. The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in July 2023 to consider whether or not it would be appropriate to direct his release. This is the Applicant’s second parole review.
10.Following a deferral in May 2024 due to witness unavailability, the case proceeded to an oral hearing on 30 January 2025, before a three-member panel including a psychologist specialist member. Oral evidence was taken from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM), and an HMPPS Forensic Psychologist. The Applicant was legally represented throughout the hearing.
11.In the professional opinion of the COM, POM and the HMPPS Forensic Psychologist the Applicant was suitable for release. The panel did not direct his release.
The Relevant Law
12.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)
13.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)).
14.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)).
15.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.
Irrationality
16.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 (CA) 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.
17.In R(DSD and others) v Parole Board [2018] EWHC 694 (Admin) the Divisional Court applied this test to Parole Board hearings in these words (at [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.”
18.In R(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 the Divisional Court in R(Secretary of State for Justice) v Parole Board [2022] EWHC 1282(Admin).
19.As was made clear by Saini J in Wells, 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.
20.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.
21.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.
The reply on behalf of the Respondent
22.The Respondent has advised that no representations will be submitted in response to this application.
Discussion
23.Submissions on behalf of the Applicant argue that the decision was irrational since:
a. the panel placed insufficient weight on the professional assessments of the witnesses (all of whom supported release);
b. the panel placed insufficient weight on the professional assessments of the witnesses (all of whom considered there was no core risk reduction work outstanding);
c. the panel placed insufficient weight on the robustness of the risk management plan (which included residence in specialist designated accommodation); and
d. the panel was wrong to infer recent substance misuse in the light of the Applicant’s explanation of a failed mandatory drug test and no other supporting evidence.
24.Taking the first three points together, it is a matter for the panel to decide how to weigh the written and oral evidence before it. A panel can weigh evidence as it wishes, provided that its overall decision discharges the common law duty imposed on it by Wells to give reasons for its decision which are safely justified on the basis of the evidence before it. The panel noted that the motivations for the Applicant’s sexual offending were poorly understood and there were limited warning signs prior to the commission of the index offence. Even if core risk reduction work has been completed, it does not inexorably follow that release must be directed. To say otherwise would negate the purpose of an oral hearing. Despite completion of core work, the panel did not see sufficient evidence of the Applicant internalising learning from that work such that his risks of future sexual reoffending had been reduced to a level consistent with safe release into the community, notwithstanding the specialist accommodation that was on offer. The panel was entitled to reach this conclusion. There is therefore no irrationality arising from the first three points raised by the Applicant.
25.Turning to the matter of the recent drug test, it is reported in the dossier that the Applicant had been required to provide a urine sample but failed to do so. The Applicant reportedly refused to wait for an hour and said he could not provide a sample due to anxiety about being around other people.
26.There was no other evidence to suggest that the Applicant has been involved in substance misuse.
27.The Applicant claims that the panel was wrong to infer substance misuse. A careful reading of the decision shows that the panel inferred the possibility of substance misuse. It stopped short of making any finding. Moreover, an inference of possible substance misuse was within the range of possible rational responses from the panel. The inference was not of a finding of substance misuse but a consideration of its possibility. In any case, the decision not to direct release is predominantly based on the Applicant’s limited internalisation and reduction in risk of sexual reoffending.
28.The legal test of irrationality sets a high bar which this case does not meet. Accordingly, this ground fails.
Decision
29.For the reasons set out above, the application for reconsideration is refused.
Stefan Fafinski
14 March 2025