[2025] PBRA 72
Application for Reconsideration by McLean
Application
1. This is an application by McLean (the Applicant) for reconsideration of a decision of oral hearing panel dated the 21 February 2025 not to direct 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 563 pages and the application for reconsideration.
Request for Reconsideration
4. The application for reconsideration is dated 20 March 2025. It has been drafted by legal representatives on behalf of the Applicant.
5. The grounds for seeking a reconsideration are that the decision is irrational in relying on factual mistakes and placing weight on matters which were not subject to a finding of fact or on which the Applicant was not questioned.
Background
6. The Applicant received an extended sentence for two offences of sexual activity with a child. That sentence imposed on 3 May 2019 comprised 8 years custody and an extended licence period of 4 years. His sentence expiry date is in October 2030.
7. The Applicant was 27 years old at the time of sentencing and is now 32 years old.
Current parole review
8. The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in June 2023 to consider whether or not it would be appropriate to direct his release.
9. The case proceeded to an oral hearing via videoconference on 18 February 2025. The panel consisted of two independent members and a psychiatrist member. It heard oral evidence from the Applicant, together with his Prison Offender Manager (POM), Community Offender Manager (COM) and Prison psychologist. The Applicant was legally represented throughout the hearing. The Respondent was not represented by an advocate.
10.The panel did not direct the Applicant’s release.
The Relevant Law
11.The panel correctly sets out in its decision letter dated 21 February 2025 the test for release.
Parole Board Rules 2019 (as amended)
12.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)).
13.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
14.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.
15.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.”
16.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).
17.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.
18.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.
19.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.
20.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.]
21.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
22.The Respondent has submitted no representations in response to this application.
Discussion
23.The detailed grounds amount for the most part to a disagreement with the weight the panel attached to various aspects of the evidence and do not identify any irrationality in the reasoning. The submission that the panel did not give sufficient consideration to the closing submissions is without basis. The panel indicated that it had taken the submissions into account, there was no need for the panel to set out the submissions in detail as the detailed reasons make it clear what the panel did and did not accept.
24.None of the errors of fact, even if accepted as errors, were matters which would have made a difference to the panel’s overall conclusion. Taking each of the issues raised in the paragraphs in the application in turn.
25.Paragraph 11 of the application - Having carefully considered the decision I am satisfied that the description of the CAWN (Child Abduction Warning Notice) as a Child Abuse Warning Notice was simply a typing error and did not impact on the panel’s overall consideration of the case. The panel was correct in its analysis of the underlying issues which are set out and without error, however the warning is described.
26.Paragraph 12 - The panel did not make a finding on the allegation of rape of a 13 year old on which the Applicant was not convicted. The panel was noting the presence of young people in his accommodation, a fact which was not denied by the Applicant. That presence, posed a risk which had not been addressed, the presence indicated a pattern of behaviour which had occurred previously, it indicated that he did not understand boundaries and posed a risk towards those teenage children. The panel did not need to make a finding on the rape allegation in order to come to those conclusions.
27.Paragraph 13 - Whether the arson happened before or after the breakdown of the relationship the application does not appear to take issue with the important point being made by the panel, namely that the Applicant struggles to manage his emotions following a deterioration in a relationship. The timing of the arson does not detract from that conclusion.
28.Paragraph 14 - Even if the panel wrongly recorded the Applicant as saying in the hearing that he drove illegally a lot of the time his antecedent record in fact shows that he did drive illegally a lot of the time. He has a number of convictions beginning in 2008 for driving whilst disqualified, dangerous driving and other motoring matters. His last recorded motoring offence was in May 2016 for driving whilst disqualified and dangerous driving for which he received a custodial sentence and a further disqualification.
29.Paragraph 15 - Regarding two of the complaints of masturbating in public, whether or not a prison cell can be described as a public place and whether or not staff are supposed to knock before entering, the fact remains (not denied by the Applicant) that he was seen masturbating by staff on two separate occasions. There is no irrationality in the panel attaching weight to that fact.
30.Paragraph 16 - The panel was entitled to place weight on the Applicant’s silence regarding his daughter or the victim and conclude that he showed little victim empathy. There is no evidence that the panel placed too much weight on this aspect. The Applicant was represented throughout the proceedings and it was open to him to refer to the matter if he wished to do so. Even without questioning the lack of empathy could be evidenced from other findings of the panel such as his lack of insight into his risk factors, his failure to complete any core risk reduction work, his pattern of offending, his tendency to blame others, seeing himself as the victim and breaching SHPOs and ROs.
31.Paragraph 17 - Regarding the question as to whether or not the Applicant was subject to a SHPO at the time he started the relationship with the victim the panel was entitled to rely on the evidence of the COM. The Applicant was present at the hearing and able to raise this matter and has not provided evidence that the COM was wrong. However, even if the evidence regarding the existence of the SHPO was incorrect the point being made by the panel was that the Applicant demonstrated a lack of compliance. That lack of compliance was evidenced by other aspects of his conduct such as ignoring police warnings about his activity with the victim and breaches of restraining orders. This error, if it was such, was not one that would have made a difference to the conclusion.
32.Paragraph 18 - The panel did not place too much weight on the actions of an unknown third party. The COM had given evidence of Ms S with whom the Applicant had had a relationship. Ms S was known to probation and to the police, she had invited younger teenagers to the Applicant’s accommodation, she was linked to an unrelated high-risk nominal who was a risk to children. The Applicant’s failure to see any risk in further association with Ms S was a legitimate area of concern for the panel.
33.Paragraph 19 - The application submits that the panel have not outlined how they have taken into account the closing submissions. The panel made it clear that they had taken into account all the evidence and the closing submissions. It is not correct to claim that the decision cannot be challenged when the reasoning was omitted; the reasoning was not omitted. From the very comprehensive and detailed panel decision the Applicant can see that all matters were considered and reasoned and will be able to identify any submissions raised that were not considered. None were identified in the application.
34.Paragraph 20 - The Applicant disagrees with the weight the panel attaches to the evidence, disagreement is not enough to establish irrationality in law. None of the errors of fact raised were fundamental in this case. The legal test sets a high bar which this case does not meet. The decision considers the correct test and gives detailed reasons for reaching a conclusion which is unassailable.
Decision
35.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
15 April 2025