[2025] PBRA 61
Application for Reconsideration by Walker
Application
1. This is an application by Walker (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 11 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. These are the oral hearing decision, the dossier consisting of 399 pages and the application for reconsideration.
Request for Reconsideration
4. The application for reconsideration is dated 28 February 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was irrational in failing to apply the correct legal test, applying inconsistent and illogical reasoning regarding open conditions, attaching disproportionate weight on historic failures, selective use of intelligence and attaching unreasonable emphasis on mixed engagement with the psychologist.
Background
5. The Applicant received a sentence of imprisonment for public protection on 25 February 2008 following conviction for wounding with intent. His tariff was set at 4 years less time spent on remand and expired in February 2012. He also received a concurrent sentence for wounding (2 years with an extended licence of 12 months).
6. The Applicant was 24 years old at the time of sentencing and is now 41 years old.
Current parole review
7. The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in January 2024 to consider whether or not it would be appropriate to direct his release. If the Board did not consider it appropriate to direct release it was invited to advise the Respondent whether the Applicant should be transferred to open conditions.
8. The case proceeded to an oral hearing via videoconference on 6 February 2025. The panel consisted of three independent members. It heard oral evidence from the Applicant together with his Prison Offender Manager (POM) and Community Offender Manager (COM). The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate.
The Relevant Law
9. The panel correctly sets out in its decision letter dated 11 February 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)).
12.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
13.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.
14.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.”
15.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).
16.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.
17.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. 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.
18.The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin), R (Hutt) v Parole Board [2018] EWHC 1041 (Admin). The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:
(a) the progress of the prisoner in addressing and reducing their risk;
(b) the likeliness of the prisoner to comply with conditions of temporary release
(c) the likeliness of the prisoner absconding; and
(d) the benefit the prisoner is likely to derive from open conditions.
The reply on behalf of the Secretary of State
19.The Respondent has submitted no representations in response to this application.
Discussion
20.Ground 1 - Failure to apply the correct legal test rationally.
The panel clearly applied the correct legal test and did not apply a high threshold for release. The panel did not disregard the risk management plan as claimed in the application, the panel clearly stated that it found the COM’s arguments cogently expressed and did not consider the risk management plan to be sufficiently robust. Contrary to the arguments in the application the panel considered all the evidence presented including that of the Applicant and reached conclusions, set out in the decision letter which were open to the panel. The application repeats the test for release and disagreeing with the panel’s conclusions labels them as irrational. There is no basis on which he does so and this ground must therefore fail.
21.Ground 2 - Inconsistency and Illogical Reasoning.
The panel decision records that the charge of illogicality and inconsistency had been levelled at the COM in the representations made on behalf of the Applicant during the hearing. That charge against the COM was not accepted by the panel; the representative in the application now levels the same charge at the panel. It is clear from the decision letter that were it not for the Applicant’s own behaviour and attitude the panel may have considered a recommendation for transfer to open conditions. Twice during the course of his sentence he had been transferred to open conditions but had been returned to closed conditions. His evidence before the panel was that he did not wish to transfer to open. Neither the POM nor the COM supported a move to open conditions. The POM reported that the Applicant had said that he would abscond if transferred. In those circumstances he did not meet the test for open conditions. This decision was the only logical decision open to the panel, the only one consistent with the evidence presented and in those circumstance this ground must fail.
22.Ground 3 - Disproportionate Weight on Historic Failures and Selective Use of Intelligence.
The panel were entitled and right to consider the incidents arising from the Applicant’s period in open conditions. The Applicant had progressed to open conditions in June 2013 but returned to closed after a year following his failure to disclose a developing relationship. He returned to open conditions again in 2015 but was returned again following involvement in a violent assault. The panel did not ignore the potential for changed behaviour nor place over reliance on uncorroborated security intelligence. The panel noted the offence related work he had undertaken and also noted the increased intelligence indicating involvement in drug trafficking and trading vapes. There is no evidence that the panel placed disproportionate or any weight on the failures and security entries. The panel in its reasons set out concerns about the Applicant’s honesty and consistency of some of his evidence, his reluctance to discuss difficult issues so hindering the understanding of the risk he poses, his lack of full engagement with psychological work as reported by his COM. Those factors, which did not depend on the selective use or any use of the security intelligence, were not disputed or challenged in the application. This ground has no basis and must also fail.
23.Ground 4 - Unreasonable Emphasis on Mixed Engagement with the Psychologist.
It is not correct to submit, as the application does, that the panel placed undue emphasis on the Applicant’s mixed engagement with the psychologist or suggested that inconsistent participation alone justified continued detention. The panel noted the positive offence focused work with which the Applicant had engaged but also noted the evidence of the COM that the Applicant’s engagement with professionals had become less active over the last year. The failure to engage in one-to-one work with the psychologist was only one of many reasons why the panel reached its conclusion. The claim in the application that the panel’s reliance on this point as a barrier to progression was excessive and unbalanced is an exaggerated claim, is not reflected in the grounds and must fail.
24.The test for irrationality is set out above. There are no grounds on which it could be sustainably argued that the decision not to release the Applicant was so illogical that every other panel would have decided otherwise. Finally, the application submits that release should be directed or a recommendation for transfer to open conditions. In the light of the failure of the application to demonstrate irrationality in the decision there is no basis for reconsideration. Nor is there any basis to recommend transfer to open conditions, an outcome which the Applicant strongly rejected at the hearing.
Decision
25.For the reasons I have given, I do not consider that the decision was irrational and accordingly the application for reconsideration is refused.
Barbara Mensah
28 March 2025