[2025] PBRA 99
Application for Reconsideration by Thompson
Application
1. This is an application by Thompson (the Applicant) for reconsideration of a decision dated 28 March 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) (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 643 numbered pages), and the application for reconsideration.
Background
4. On 15 July 2016 the Applicant received two concurrent extended sentences each comprising imprisonment for 78 months with an extension period of 48 months following conviction on two counts of rape of a female aged 16 or over. On the same occasion, he also received a concurrent 12 month determinate sentence for making threats to kill.
5. He has been released and recalled twice on this sentence. He was most recently released on licence on 9 May 2024 following an oral hearing before the Parole Board but recalled on 31 May 2024 following breaches of rules at his designated accommodation and concerns about his alcohol use. After recall, it is reported that it was also discovered that he had been in breach of a non-contact licence condition.
6. His sentence expiry date is reported to be July 2026.
7. The Applicant was 54 years old at the time of sentencing and is now 63 years old.
Request for Reconsideration
8. The application for reconsideration is dated 17 April 2025 and has been drafted by solicitors on behalf of the Applicant. It submits that the decision was irrational. No submissions were made regarding procedural unfairness or error of law.
9. This submission is supplemented by written arguments to which reference will be made in the Discussion section below.
Current Parole Review
10.The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) to consider whether or not it would be appropriate to direct his release. This is the Applicant’s first parole review since his most recent recall.
11.The case proceeded to an oral hearing on 20 March 2025, before a two-member panel. The panel took oral evidence from the Applicant, the Prison Offender Manager (POM), and the Community Offender Manager (COM). The Applicant was legally represented throughout the hearing.
12.In the professional opinions of the POM and the COM the Applicant was not suitable for release. The panel did not direct the Applicant’s release.
The Relevant Law
13.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)
14.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)).
15.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)).
16.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
17.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.
18.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.”
19.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).
20.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.
21.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.
22.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
23.The Respondent has advised that no representations will be submitted in response to this application.
Discussion
24.The Applicant seeks reconsideration on the sole ground of irrationality, arguing that the panel placed too much weight on his alcohol usage (and did not place sufficient weight on his custodial behaviour).
25.With regard to custodial behaviour, it is submitted that the POM stated during the hearing that he had a positive character reference from a member of staff which he would upload to the dossier after the hearing. He did not do so and the panel did not consider the reference before making its decision.
26.This would be a matter of procedural unfairness rather than irrationality, but only if I am satisfied that, had the panel seen the reference, it would have made a different decision and directed the Applicant’s release. I am not satisfied that this would have been the case. The panel acknowledged the Applicant’s positive behaviour noting (at para. 2.12) that “[the Applicant’s] custodial conduct has been very positive, he was a trusted Red Band, there has been no recent evidence of any forms of substance misuse and [he] was generating lots of positive reports for his behaviour and work ethic in custody”. It is difficult to see how the missing reference could have materially added to this already detailed and positive account. The panel did not base its decision not to direct release on negative custodial behaviour. Rather, it identified community-based risk and issues of compliance as the key determinants of risk manageability. A positive character reference would not have altered the panel’s core concerns about the Applicant’s risk and compliance in the community.
27.The panel was entitled to conclude that good behaviour in custody, while positive, was not determinative of the issue of risk in the community. Custodial environments provide a highly structured setting where risk factors are less likely to manifest. The focus of the statutory public protection test requires an assessment of risk if the Applicant were no longer confined, taking into account his past compliance history and the external controls available in the community.
28.With regard to alcohol misuse, it is submitted that the panel irrationally preferred the evidence of the COM over the Applicant’s account concerning advice allegedly given about alcohol consumption.
29.The panel’s decision demonstrates a careful and balanced evaluation of the evidence relating to alcohol misuse, both in terms of factual breaches and the Applicant’s expressed attitudes. The Applicant was subject to a zero-tolerance alcohol licence condition. Despite this, he provided positive alcohol readings shortly after release and admitted consuming four pints of beer. While the Applicant asserted that he had been advised by a Senior Probation Officer that limited alcohol consumption would be acceptable, there was no documentary or other supporting evidence to corroborate this assertion.
30.The COM gave evidence that no such advice had been given. In the absence of corroborating material, and bearing in mind the Applicant’s overall compliance history, it was open to the panel to prefer the COM’s evidence. There is no basis on which it could be said that the panel’s assessment of credibility was irrational. Panels are entitled to prefer professional evidence where conflicting accounts are given, particularly in the absence of corroborating documentation.
31.Furthermore, even on the Applicant’s own account, he had consumed more alcohol than he claimed would be permissible. The panel found that the Applicant continued to minimise the significance of alcohol in his offending behaviour and future risk. His stated intention to drink again if released, regardless of external controls, further supported the panel’s concern that alcohol remained a critical risk factor.
32.The panel’s assessment of alcohol misuse as a continuing and significant risk factor was rational, well-evidenced, and consistent with established risk assessment principles.
Decision
33.Having carefully reviewed the original decision, the dossier, and the Applicant’s representations, I am not satisfied that the panel’s decision was irrational. The panel’s conclusion that it remained necessary for the protection of the public that the Applicant should remain confined was reasonably open to it on the evidence. There was no flaw in reasoning, nor any conclusion that fell outside the range of outcomes reasonably available to the panel. The application for reconsideration is therefore refused.
Stefan Fafinski
14 May 2025