[2025] PBRA 56
Application for Reconsideration by Fergus
Application
1. This is an application by Fergus (the Applicant) for reconsideration of the decision of the Parole Board, following an oral hearing on 9 December 2024, of 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 412 pages including the decision letter (DL) the subject of this application.
b. Written submissions dated 6 March 2025 sent in by the Applicant’s legal representative to the Parole Board panel following the hearing.
c. Undated handwritten submissions of 8 pages sent in by the Applicant.
d. The application grounds dated 4 March 2025 submitted on behalf of the Applicant.
e. An email dated 12 March 2025 on behalf of the Secretary of State for Justice (the Respondent) indicating that she does not wish to make representations in respect of the appeal.
Background
4. The Applicant is now 46 years old. In 1998 he was convicted of threatening behaviour and a breach of bail conditions. In 1999 he was convicted of 2 offences of robbery and of assaulting a police officer and sent to a Young Offenders’ Institution for 2 years. In 2000 and 2001 he was convicted of offences of possession of Class A drugs with intent to supply and possession of a firearm, and sentenced to 3 years and 3 months imprisonment. In 2003 he was convicted of robbery and sentenced to 3 years imprisonment. In 2006 he was sentenced to 4 years imprisonment for possession of Class A drugs with intent to supply. Following convictions in 2010 and 2011 for simple possession of controlled drugs, in 2011 he was convicted of possession of controlled drugs with intent to supply and sentenced to 5 years and 9 months imprisonment. In 2013 he was convicted of an offence (committed in prison) under Section 20 of the Offences against the Person Act 1861 and sentenced to 8 months consecutive to the earlier sentence. In January 2016 he was convicted of the index offences of robbery and sexual assault and sentenced to 6 years imprisonment with an extended licence period of 4 years. He was released on licence from this sentence on 14 January 2022. His licence was revoked on 6 July 2023 and he was returned to prison on 16 October 2023. His Sentence Expiry Date is in January 2026.
Request for Reconsideration
5. The grounds for seeking a reconsideration of the case submitted by the Applicant’s legal representative are set out in full below:
a. “The process was unjust, as the decision includes a reference to an assessment for KAIZEN from 2019. A psychologist's report was included in the dossier and given undue significance, despite being dated April 2021. There is no recent psychological evaluation or assurance that [the Applicant] remains fit for the program. It is evident that a psychologist’s professional judgment is crucial in this matter. This consideration was explicitly outlined in his sentence plan back in 2019; if any significance were to be assigned to it, then a treatment needs report should have been requested beforehand.
Please also see [the Applicant’s] letter which must be taken into consideration.”
b. “This assessment of his risk may be unsafe and thus the decision flawed, given it was made without any psychological report and contrary to the recommendations of the professionals that did give evidence.”
6. The letter from the Applicant himself contains further grounds. These are lengthy and are summarised below:
a. The Decision Letter (DL) does not adequately summarise the positive changes made by the Applicant during the last 3 years or so while in the community and since his recall.
b. The Applicant’s behaviour, as demonstrated in the reports and evidence from within the prison since recall, has demonstrated the Applicant’s “trustworthiness”.
c. The DL’s focus on the Applicant’s previous ‘spent’ convictions (for offences committed when a teenager or young adult) amounted both to ‘procedural irregularity’ and renders the decision ‘irrational’.
d. The Panel’s concern about the Applicant’s risk to intimate partners was unjustified. The Applicant has never been convicted of an offence involving domestic violence. The licence condition suggested concerning non-contact with a particular person is irrational.
e. In any event concerns on this topic are irrelevant both to the index offences and to the reasons for the Applicant’s recall to prison.
f. The DL at paragraph 4.6 refers to the Applicant’s previous record and to possible further work needed to reduce the risk posed by the Applicant bearing in mind that he had completed such work in prison and then gone on to commit the offence in prison in 2013.
g. The DL ignores, or puts insufficient weight of the positive steps taken by the Applicant both to improve himself and to assist younger prisoners.
h. If there was real concern for the safety of a particular former partner, there should have been a non-contact condition in respect of her. The fact that that was no such suggestion means that the concerns expressed in the report were irrational.
i. The matter referred to in the previous paragraph and other concerns arising from allegations which were marked “No Further Action” (NFA) have not resulted in proposed specific licence conditions and should therefore have been ignored.
j. The reference at paragraph 4.6 to work which suggests that work which could have been done to reduce risk but has not been because it was not available through no fault of the Applicant renders the decision irrational.
k. The Applicant spent 18 months in the community on licence before recall, without proper support from his COM (the 5th since his release in January 2022) and did not reoffend during that period. During that period the Applicant was working and obtained qualifications without the assistance of his then COM.
l. The sentence is misdescribed in the relevant section of the DL.
m. The difficulties caused by the Covid pandemic had a number of adverse consequences for the Applicant which render the instant decision not to release him irrational.
i. There were no suitable programmes for him in custody.
ii. There were no suitable programmes in the community when he was released.
n. The failure of the authorities to move the Applicant to a prison in which the “KAIZEN” course is available renders the decision irrational or amounts to a procedural irregularity. And in any event KAIZEN is available in the community and in the few months left before the Applicant’s Sentence End Date could not be completed in prison. To the extent that the Board’s decision was based upon the issue of the KAIZEN course, it was irrational. The fact that KAIZEN was not put forward as an option when the Applicant was released on licence indicated that it was not necessary for him to complete it for his risk to be reduced sufficiently. The same must be true now.
o. References to the work done by the Applicant whist on licence - in particular at the Glastonbury Festival - were inaccurate/irrational and should if properly considered would have demonstrated that the Applicant’s risk had reduced sufficiently for him to be released.
p. To keep the Applicant in prison until his sentence expiry date in January 2026 is likely to increase the risk of serious harm which he poses to the public as against releasing him in advance of that date with conditions designed to reduce or eliminate that risk.
Current parole review
7. The case was first heard in September 2024 (after an unsuccessful application made in July 2024 on the Applicant’s behalf for the recall to be rescinded) but adjourned because of a lack of time to hear evidence and for additional information to be obtained.
The Relevant Law
8. The panel correctly sets out in the DL 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)).
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)). This is an eligible sentence.
Irrationality
11.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 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.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.
13.The DSD case 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 a “more modern” test set out by Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin).
14.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”.
15.It must be emphasised that 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.
16.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.
17.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.
18.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.
19.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.
20.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”.
21.When considering whether this decision is irrational, I will keep in mind that it is the decision of the panel who are expert at assessing risk; importantly it was the panel who had the opportunity to question the witnesses and to make up their own minds what evidence to accept. 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
22.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.
23.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.
24.The overriding objective is to ensure that the Applicant’s case was dealt with justly.
Other
25.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.
26.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
27.The Respondent has offered no representations in respect of this application.
Discussion
28.Panels are frequently presented with differing opinions on the suitability of a prisoner for release by the professional witnesses. In this case:
a. The Prison Offender Manager (POM) recommended release.
b. The Community Offender Manager (COM) did not recommend release.
29.Prior to his recall he had frequently breached his licence conditions and when challenged given explanations which were not believed by professionals or by the panel for his failures to observe them. No suggestion is made in the grounds submitted by his legal representative that those findings were irrational. It is noteworthy too that he still denies the index offences in view of the helpful summary of them contained in the judge’s sentencing remarks at pages 33-39 of the dossier.
30.It was clear that while in prison following his return the Applicant had behaved well.
31. The panel came to the clear conclusions (at paragraphs 3.1-3) that:
a. The risk still posed of sexual assault by the Applicant was high. No suggestion has been made in the grounds submitted either by the legal representative or the Applicant himself that that conclusion was irrational.
b. The risk of serious harm from violent offending was high in the possible contexts of a robbery or a fight or when involved in selling Class A drugs.
c. There was limited evidence that the Applicant could manage his risk of general and /or sexual violence.
32.In those circumstances it would be surprising indeed if a decision reached by a panel which gave effect to the considered recommendation of the professional witness who would, were he to be released, have the job of supervising him in the community was found to be irrational.
33. As to the original grounds:
Grounds 5a and c which effectively fall together. The panel had the assistance of a report from 2021 from a Forensic Psychologist. The attitude displayed by the Applicant to the Forensic Psychologist was repeated by the Applicant at the hearing - and bearing in mind the many years since he committed the index offences - is likely to be permanent. He maintains/ed that he is innocent - possibly the result of his suffering from Narcissistic Personality Disorder - and thus has no need of a course such as KAIZEN. An adjournment - which was not sought by the Applicant or on his behalf (the case had already had to be adjourned from October 2024) - would have been most unlikely to result in a positive outcome and a subsequent PB decision to release him before his SED in January 2026. The panel was entirely justified in dealing with the case on the information available to it at the time of the hearing. Indeed, as was pointed out in the report referred at paragraph 6.11 (page 324 of the dossier) the chances of KAIZEN or another possible course - Resolve - being available to complete in the time left before his sentence ends were slim to non-existent. The Ground is in error in that the professionals did not both recommend release.
34. As to the grounds submitted by the Applicant himself:
Ground 6a. The positive changes since his earlier release on licence are referred to at paragraph 8 of the DL. The fact that necessary work is not available may not be attributable to fault on the Applicant’s part but to the limitations and restrictions on the availability of suitable courses or other initiatives in prison generally or in a particular prison. The PB however has to deal with offenders and their treatment within prison as they are and not as it - or they - might wish them to be.
Ground 6b. The Applicant’s “trustworthy” behaviour since recall. The DL records - at paragraph 2.2 - the positive fact that since his recall the Applicant has not had negative entries, adjudications, or positive drug tests recorded against him and also highlights the positive entries made in respect of his support to other prisoners as an ‘enhanced’ prisoner. However the panel had to balance the Applicant’s ability to “do” prison against the background that again and again following substantial sentences passed on him over the last 20 plus years he has reoffended in such a way as to cause, or to risk causing, serious harm to others, and an attitude, which is apparent from the grounds themselves that whatever he says about himself must be true because he says it, together with his cavalier attitude to the licence conditions imposed on his most recent release.
Ground 6c. There is nothing in this ground. All panels will, and should, look at the offender’s previous history when assessing the risk the offender may present to the public on release.
Ground 6d and e. Intimate partners. The DL deals correctly with this topic, noting that there has been no recent history of such violence. The statistical findings referred to throughout the dossier are simply a product of the facts and dates fed into the programme which produces the assessments. The DL was bound to refer to their existence and the statistical risk revealed by the programmes used to provide estimates of risk and does so accurately at paragraphs 4 and 6. If there is a direction for release in a particular case individual licence conditions may be altered or removed if circumstances change following release.
Ground 6f. The DL was entitled to mention possible future work necessary to reduce the risk posed by the Applicant - even if that work could not be completed before the SED. The PB must not direct the release of prisoners simply because there is no availability at a given prison - or sufficient time available even if there is availability - for the offender to complete particular offending behaviour work. The PB is simply concerned with risk. (And see the later paragraphs on this topic).
Ground 6g. The DL clearly took into account the good work done by the Applicant in prison. It quoted from the previous DL of 2021 at paragraph 2.1, and referred to TSP (2013), and the vocational training he has done at 2.6. prior to recording the POM’s opinion that he could safely be released.
Ground 6h. No doubt had the panel considered that release should be directed it would have considered too whether any licence condition was necessary to protect the former partner.
Ground 6i. The same applies to this ground.
Ground 6j. The PB is bound to consider cases on the basis of the facts before it. The fact that necessary work to reduce the risk of serious harm posed by a given offender is unavailable or only available at another prison cannot justify the Board directing the release of a prisoner whose risk is too high to be manageable in the community. The Board has no control over the use of resources within the prison system.
Ground 6k. The DL referred to the positive progress made while the Applicant was out of prison on licence for 19 months (Para 1.15 of the DL). Even supposing there is some merit in the allegation that the Applicant was not properly supported by his COM/the Probation Service during the period the PB has to deal with offenders as they are at the time of the hearing. It is actual risk presented by the offender which has to be considered not the risk which might be presented by a prisoner who had completed a particular course of piece of work or worked for longer with the same COM.
Ground 6l. The index offences are described in the dossier as robbery and sexual assault at pp13, 17 and 24 of the dossier and elsewhere. I have seen no evidence to suggest that those descriptions are inaccurate.
Ground 6m. This ground echoes earlier grounds - see e.g Grounds 6j and k. The absence or unavailability of particular courses which might serve to reduce the risk presented by the prisoner does not alter the test to be applied by the PB. The PB cannot direct that a particular course or courses be made available if for whatever reason it or they are not available.
Ground 6n. The work said by the Applicant to have been done while he was at liberty was considered by the PB and by the Applicant’s then COM - see the dossier at pp 29 and 32- and his COM in 2024 - page 164. Indeed his failure to inform anyone that he was going to be working in an environment “where the risk in the community would be very difficult to manage” played some part in the decision to recall him bearing in mind the difficulty of “supervising” someone in that role and, in the latter instance, in the opinion expressed that the Applicant was not yet ready for re-release. The DL accurately summarises the evidence and the concern of the COMs at paragraph 2.9.
Ground 6o. The last ground is one which is understandable and might have some merit if this particular issue had not been finally dealt with some years ago in the case of The King on the application of Mina Dich v Parole Board for England and Wales [2023] EWHC 945 (Admin) by the Administrative Court. In that case the PB panel concluded that although the risk to be considered extended only up to the end of the determinate sentence The Minister of Justice appealed the decision. The Court allowed the appeal and rejected the line of reasoning within the DL. The Board has to consider the question of risk both up to and beyond the expiry of a determinate sentence. Accordingly, this ground too has to be rejected.
35. For these reasons I decline to make the order sought for reconsideration.
Sir David Calvert-Smith
27 March 2025