[2025] PBRA 82
Application for Reconsideration by Everton
Application
1. This is an application by Everton (the Applicant) for reconsideration of a decision of an oral hearing panel dated the 18 March 2025. The decision was 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 dossier, the panel’s decision, the application for reconsideration drafted by the Applicant’s legal adviser and the response by the Secretary of State (the Respondent).
Request for Reconsideration
4. The application for reconsideration is dated 2 April 2024.
5. The grounds for seeking a reconsideration are set out below.
Background
6. The Applicant is serving a sentence of imprisonment for public protection. The sentence was imposed on 11 December 2006. The tariff expired on 16 May 2008. The Applicant was first released in April 2013. Since then he has been recalled to prison on four occasions. The index offences were robberies committed in a park. The victims were males. One of the victims suffered a broken cheekbone as a result of the robbery. The index offences were committed at a time when the Applicant was on licence in relation to an earlier robbery. He had been sentenced to a 4 year period of imprisonment. The Applicant was aged 20 at the time of sentence. He was 39 at the time of the oral hearing. The current recall occurred in circumstances where the Applicant had engaged in stalking and harassing behaviour. The victim was a former partner.
Current parole review
7. The referral in this case requested the Parole Board to consider whether the Applicant would be suitable for a direction for release and if not whether a recommendation for a transfer to open conditions should be made. The panel were also requested to consider whether the Applicant’s licence in relation to imprisonment for public protection should be terminated.
8. The referral was considered by a panel consisting of three Parole Board members, consisting of an independent chair of the Parole Board, a further independent member and a psychologist member. Evidence was given at the hearing by a prison offender manager (POM), a senior probation officer acting as community offender manager (COM) and two prison commissioned psychologists. The Applicant was legally represented.
The Relevant Law
9. The panel correctly sets out in its decision letter dated 18 March 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.
18.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
(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.
Error of law
22.An administrative decision is unlawful under the broad heading of illegality if the panel:
a) misinterprets a legal instrument relevant to the function being performed;
b) has no legal authority to make the decision;
c) fails to fulfil a legal duty;
d) exercises discretionary power for an extraneous purpose;
e) takes into account irrelevant considerations or fails to take account of relevant considerations; and/or
f) improperly delegates decision-making power.
23.The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power.
Other
24.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."
25.Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.
Reconsideration as a discretionary remedy
26.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
27.The Respondent offered no representations.
Grounds and Discussion
28.The substantive grounds argued in this case focus in the main upon submissions that the decision was irrational, and that the irrationality arose from reliance upon mistakes of fact by the Parole Board panel.
29.It is possible to argue that mistakes in findings of fact made by a decision maker can 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. Thus to be relevant in relation to reconsideration, as noted above the alleged mistake of fact must demonstrate that it was
· Uncontentious,
· and objectively verifiable,
· and that it played a material (though not necessarily decisive) part in the panel’s reasoning.
Ground 1
30.It is argued on behalf of the Applicant that the panel mistakenly referred in the panel decision letter to a programme called the Bridge Programme. There had been a reference within the dossier to a report by a psychologist (in 2021) that the Applicant had not completed this particular programme. The Applicant argues that he knew nothing of the programme and that he was not asked about this programme during the course of the panel discussion and that therefore it amounted to a mistake of fact amenable to reconsideration.
Discussion
31.As noted above there is (in the dossier relating to this Applicant) one reference to this particular programme in a psychological report. The report names the programme and gives the date (August 2015) when it is said that the Applicant failed to engage in this particular programme and was deselected. So far as this point is concerned, it appears that, save for the Applicant indicating that he has no memory of the programme, there is an absence of objective and verifiable evidence challenging the written record of the reporting psychologist. I am not therefore persuaded that this reference by the panel can be considered to be a verifiable mistake. It is also clear that this factor was not a material factor in the final reasoning of the panel. For that reason I do not find irrationality in this argument.
Ground 2
32.It is argued on behalf of the Applicant that the panel made an error of fact in suggesting that the Applicant removed himself from a therapy service or that he misrepresented his engagement with that service.
Discussion
33.This argument relates to a period of therapeutic engagement by the Applicant whilst in prison. The Applicant engaged in a number of sessions. His engagement was brought to an end because he was transferred to another prison. The panel accepted that the Applicant had undertaken a number of sessions of therapeutic work. The panel did not accept that the work had been completed. The Applicant’s legal adviser argues that it was a mistake of fact by the panel to conclude that the Applicant had not completed the work.
34.Having considered the dossier and the decision of the panel it is clear that given the nature of the intervention, namely therapy in relation to trauma, the panel were entitled to take account of the fact that the intervention (through no fault of the Applicant) ended prematurely. Given the nature of intervention programmes and the prison service arrangements I am not persuaded that it is possible to reach a realistic conclusion that an uncontentious and objectively verifiable mistake arises in this regard. There were differing views, the panel were entitled to reach a conclusion about the matter. Importantly the panel indicated in its decision that they acknowledged that the Applicant had started to make progress in addressing his harmful behaviour. They also acknowledged that he had shown significant change over the six-month period before the decision. The panel also took the view, as they were entitled to, that they did not agree with professionals who attributed all the Applicant’s negative behaviour to experiences of trauma. The panel took the view that other triggers were in play, in particular the Applicant’s attitudes, his emotional regulation and poor choices that he made. Again I do not find that a mistake which was verifiable and uncontentious is evidenced in this argument, and further even if it were to be evidenced, I am not persuaded that the length of time of trauma therapy, undertaken by the Applicant, was a material factor in the panel’s decision.
Ground 3
35.It is argued on behalf of the Applicant that the panel unfairly concluded that the Applicant was reluctant to engage in group work relating to addressing risk.
36.The argument by his legal adviser is that, rather than being reluctant to engage in behavioural work, the Applicant in fact suffered from neurodiverse issues which made group work unsuitable for him.
Discussion
37.Having considered the decision in this case it is clear that the panel’s approach was to assess the Applicant’s potential risk. The panel concluded that there were core risk factors which had not been addressed. The panel identified those risk factors as work in connection with relationships, and insight into the seriousness of stalking behaviour. It is well established that it is not for a parole panel to direct intervention work or establish a sentence plan for the Applicant. It is not unreasonable, however, for the panel to investigate whether work has been completed which might address core risk factors, and if not completed or undertaken, reach a conclusion as to the management of risk. I am not persuaded that the panel’s approach amounted to unfairness or procedural irregularity. The mechanism for addressing risk, and any programmes or other work, were the responsibility of the Applicant and those supporting him within the prison and elsewhere.
Ground 4
38.The Applicant’s legal adviser points out that the panel suggested that an organisation called “Changing Tunes” had been identified as a protective factor before the Applicant’s last release from prison. The Applicant’s legal adviser notes that this is incorrect and in fact the Applicant engaged with this organisation after (rather than before) his last recall.
Discussion
39.As noted above a factual error if established must have played a material part in the panel reasoning to be considered irrational. The role of the organisation called Changing Tunes could not be argued as fundamental to managing the Applicant’s risk. The organisation is a voluntary organisation aimed, it appears, to encourage personal development in the area of music. I am not persuaded that this issue had any material impact upon the panel’s decision and therefore could not amount to irrationality.
Ground 5
40.The Applicant’s legal adviser provides a critique of the assessment by the panel of the Applicant’s evidence of outstanding risk. The Applicant’s legal adviser argues that the prison instructed psychologist had found that the Applicant had developed internal controls which would manage his risk in the community and had provided evidence of that capacity. The argument therefore adduced by the Applicant’s legal adviser is that the panel were irrational in rejecting the views of the prison instructed psychologist.
Discussion
41.As noted above panels of the Parole Board are not bound by the views or recommendations of professionals. Their role is to make an overall assessment of the evidence presented at the hearing. The evidence will include the historical basis for the offending or any recalls as well as the views of professionals. The panel carefully analysed the evidence in this case and came to a different conclusion to that of the professionals. As the panel clearly noted in the decision they did not agree with the view of professionals that all of the Applicant’s behaviour could be linked solely to experiences of trauma. The panel considered that poor emotional regulation and poor choices and addressing negative behaviour in relation to relationships remained outstanding risk considerations. The panel were particularly concerned about stalking behaviour and the presence of a video message which included an image of the Applicant carrying a knife outside a victim’s premises. The panel’s conclusions are clearly set out in the decision letter as are the reasons for not supporting the views of professionals in terms of managing risk. I do not find the approach of the panel to be irrational in the sense set out above.
42.It is further argued by the Applicant’s legal adviser that emotional dysregulation and impulsivity are symptoms of ADHD and possibly caused by historical trauma. The panel acknowledged in its decision that the Applicant was clearly troubled by psychological difficulties. This was likely to be some or part of an explanation for the Applicant’s risk and behaviour. However as noted above the panel were bound by the statutory test relating to public safety. The panel were concerned with management of, and addressing of, risk. This submission does not in determination amount to irrationality in the sense set out above.
Ground 6
43.It is submitted that the decision of the panel was “vague” and that the panel failed to identify core risk reduction work albeit that they took the view that such work was outstanding.
Discussion
44.As noted again above, the panel’s role is focused upon an assessment of risk and assessing public safety. The panel took the view having assessed the evidence that there remained unaddressed risk factors and that therefore the Applicant did not meet the test for release. The panel’s decision set out their reasoning in relation to their decision. The panel’s role was not to direct or suggest risk reduction work but to make an assessment, after considering the evidence adduced at hearing, of whether, in their opinion, the Applicant met the test for release. This ground does not in my determination amount to irrationality.
Ground 7
45.It is submitted that the Applicant did not have a fair hearing because the witness giving evidence for the probation service changed at short notice and the Applicant considered that he was not able to put his case forward properly during the hearing.
Discussion
46.This ground appears to direct criticism towards the fact that the probation service had allocated different probation officers to the Applicant over a relatively short period of time and that the probation officer giving evidence at the hearing was allocated at short notice because of sickness. As noted above the Applicant was legally represented at this hearing. He was therefore able to test evidence, through his legal adviser, by way of examination of the probation officer representing the probation service at the hearing. Whilst it is regrettable that administrative changes do occur in relation to services to prisoners, the Parole Board are bound to take account of evidence presented at a hearing. The Applicant was at liberty to apply for the matter to be adjourned to enable more time to be given to establish a relationship with the probation service if he so chose. This aspect of the submissions by the Applicant’s legal adviser relates to criticisms of the probation service and is one which should be directed towards the probation service. It is not, in my determination, a matter for the Parole Board or a matter which amounts to procedural irregularity or irrationality. For that reason this ground is rejected.
Ground 8
47.The Applicant’s legal adviser indicates that the Applicant took the view that he did not have a fair hearing as he was questioned in a “discriminatory fashion” and one which did not take account of his neurodiversity.
Discussion
48.The panel were well aware of the difficulties suffered by the Applicant in terms of neurodiversity and trauma. Those factors were specifically cited in the decision. Panels of the Parole Board are specifically trained in relation to neurodiverse issues and therefore are able to approach such matters taking account of individual difficulties. However panels are also obliged to reach conclusions about risk. The testing of evidence can appear challenging for prisoners and others. Panels of the Parole Board however are obliged to probe evidence to ensure that the test for release has been properly analysed and assessed.
49.The Applicant also is at liberty to complain individually about a particular form of words or comments by a panel, using the complaints process within the Parole Board. This is not a matter which amounts to irrationality or procedural irregularity.
General
50.Whilst the Applicant is understandably disappointed by the decision of the panel, the bulk of this application for reconsideration amounts to a request to rehear and reassess evidence adduced at the panel hearing. The panel had the advantage of an extensive dossier of reports and other material. They had the advantage, to, of seeing and hearing the Applicant as well as the witnesses. The Applicant was legally represented throughout. Where there is a conflict of opinion it was plainly a matter for the panel to determine which opinion they preferred. The reconsideration mechanism is not a process whereby the judgement of the panel when assessing risk can be lightly interfered with. Nor is it a mechanism where I should be expected to substitute a differing view of the facts to those found by the panel unless of course it is manifestly obvious there was an error of fact of an egregious nature which can be shown to have directly contributed to the conclusion arrived at by the panel. In this case I find no such error of fact. The panel’s reasoning is set out in the decision. For these reasons the application for reconsideration is rejected.
Decision
51.For the reasons I have given, I do not consider that the decision was irrational and/ or procedurally unfair and accordingly the application for reconsideration is refused.
HH Stephen Dawson
24 April 2025