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You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Wain, Application for Reconsideration by, [2025] PBRA 35 (17 February 2025) URL: http://www.bailii.org/ew/cases/PBRA/2025/35.html Cite as: [2025] PBRA 35 |
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[2025] PBRA 35
Application for Reconsideration by Wain
Application
1. This is an application by Wain (the Applicant) for reconsideration of a decision of a panel of the Parole Board dated the 8 January 2025 making no direction for release and no recommendation for open conditions following an oral hearing on 17 December 2024.
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 application for reconsideration, the decision and the dossier.
Request for Reconsideration
4. The application for reconsideration is dated 28 January 2025.
5. The grounds for seeking a reconsideration are that the hearing was procedurally unfair and the decision is irrational. The grounds in the application are discursive and some of them are clearly without merit but I have tried to analyse what the real complaints are. The grounds for saying that the hearing was procedurally unfair are that:
(i) The panel inserted two pages into the dossier unknown to the Applicant and his solicitor. They had not had the opportunity to discuss the matters set out in those two pages.
(ii) While the Community Offender Manager (COM) was giving evidence she referred to several pages in the probation file which were not in the dossier. These pages were added to the dossier after the hearing on the direction of the panel. Neither the Applicant nor his solicitor saw these pages before the hearing.
(iii) Not seeing these documents before the hearing was unfair to the Applicant.
(iv) It is also suggested that the Applicant's solicitor was put off in asking questions by the fact that the witness was clearly referring to something else. This ground has no merit. The solicitor was experienced and should not have been put off because the witness was looking at notes. If he really was, then he should have stopped asking questions and asked the witness not to look at notes. I shall not return to this ground.
The grounds for saying that the decision was irrational are:
(v) The decision was contrary to the views of the experienced Prison Offender Manager (POM) who had extensive knowledge of the Applicant.
(vi) The COM whose evidence was that the Applicant could not be safely managed in the community was inexperienced and didn't know the Applicant well so that the evidence of the POM should have been preferred.
(vii) The panel attached no or insufficient weight to the length of time that the Applicant had been in the community without being convicted of any offence.
Background
6. The Applicant was sentenced to life imprisonment for murder on 26 June 1990. The minimum period that he had to serve was 10 years before he was eligible to be released on licence. He stabbed and killed a man that he had an argument with after drinking in a pub. The Applicant was 17 when he committed the offence and 18 when sentenced. He was first released on 20 September 2000 and recalled on 3 December 2003. The first recall arose out of a complaint by his girlfriend that he had been harassing her. The police were called, the Applicant was charged but acquitted. The panel that considered his recall found that there were text and voice messages sent by the Applicant that could appear to be threatening. The Applicant was re-released on 9 March 2004 and recalled on 28 June 2004. On this occasion he had reacted very badly to a visit from people from the Home Office checking on his address. He was not convicted of any offence but he was recalled because of the nature of his reaction. The Applicant was released on 18 April 2006 and recalled on 21 February 2014. This was following an allegation by his partner's sister that the Applicant had assaulted his partner. The Applicant disputed the allegation and a panel heard evidence from the Applicant's partner and the Applicant and decided that there was no evidence that the Applicant had assaulted his partner and the recall was unjustified. The Parole Board directed his release on 29 August 2014. The Applicant was recalled on 13 October 2023. Again, this was as a result of an allegation that the Applicant had assaulted his partner. This was a different partner from the one involved in the previous recall. The police were called and the Applicant was charged and was due to stand trial on a charge of common assault. The prosecution discontinued the prosecution after the complainant withdrew her statement and the Applicant was acquitted. The partner had recorded part of the altercation which led to the charge on her mobile phone and this was seen by the panel at the hearing.
Current parole review
7. The Applicant's case was referred to the Parole Board on 13 November 2023. The hearing took place on 17 December 2024 and was then adjourned to allow the Applicant's legal representative to prepare closing submissions. They were supplied on 5 January 2025. At the time of the hearing the Applicant was 52 years of age.
8. At the hearing on 17 December 2024 the panel heard from the Applicant, the POM and the present and past COMs. The past COM was required in order to give details of and reasons for the recall.
The Relevant Law
9. The panel correctly sets out in its decision letter dated 8 January 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.
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.
22.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 (the Respondent)
23.The Respondent has made no submissions in response to this application.
Discussion
24.I will deal with those issues raised in the application that I consider have some merit and are arguable.
25.Procedural unfairness: It is said that the hearing was procedurally unfair in that the Applicant did not know the case against him before the hearing and did not have an adequate opportunity to meet the case.
26.While it would be procedurally unfair if the matters set out above were shown to be correct, that depends on the circumstances. It is correct that two pages were missing from the dossier on which the panel did rely. That was a previous decision of the Board dated 5 October 2004 which included findings relating to a previous recall as a result of complaints from a partner. The panel directed that those two pages should be added to the dossier (pp 192-194).
27.The panel set out in their decision that when that became apparent the Applicant and his legal representative said that they were content to continue with the hearing. Having agreed to continue, it is not open to the Applicant to complain that he didn't have a proper opportunity to deal with the matters set out on those pages. That fact that the Applicant agreed to continue does not appear to be challenged.
28.During the course of the hearing while one of the COMs was giving evidence reliance was placed on documents which were within the probation file but not in the dossier. These were read out and the panel directed that they should be added to the dossier which they were at the end of the hearing.
29.Again if the Applicant, advised by an experienced advocate, wished to have time to consider those documents and give his answers to them then he should have asked for it at the time. The legal representative could have asked for the hearing to be re-opened to allow the Applicant to deal with those matters if he was unable to do so during the hearing. He didn't and having been prepared to carry on it is not open for the Applicant now to ask for a re-hearing. Matters do arise in the course of a hearing and no doubt the panel would allow time or adjourn the hearing so that the Applicant can deal with them but the time to make the complaint is at the time, not to carry on in the hope that the panel will direct release and then ask for a re-hearing afterwards.
30.No doubt there is pressure on an Applicant to continue the hearing rather than have an adjournment but once the decision is made to carry on, it will not be a ground for reconsideration afterwards.
31.Irrationality: I do think that this ground is arguable. It is correct that the Applicant had been on licence for a considerable period of time without being convicted of any offence. Taking into account the finding of the panel in 2014 that nothing was proved that justified recall, he has been at liberty without justifiable complaint since 2006 until this last recall which again did not result in a conviction.
32.However the panel heard the evidence and importantly saw the video. They were entitled to conclude that the contents of the video were evidence of risk to intimate partners. This is distinct from the index offence but the panel were entitled to take into account the fact that when roused in the past the Applicant has stabbed another man to death. They were entitled to take that into account when considering the risk that he represented to intimate partners.
33.While I do find this aspect of the case arguable the decision that the panel made was not in my judgment irrational on the evidence that they heard. They heard the evidence and they were entitled to reach the conclusion that they did.
34.They were entitled to prefer the evidence of the COM to that of the POM. They clearly took all the evidence into account.
35.I do however consider that, bearing in mind how long over-tariff the Applicant is, that his next parole hearing should take place as soon as the core work has been completed and that should be done as soon as possible.
Decision
36.For the reasons I have given, I do not consider that the decision was irrational or procedurally unfair and accordingly the application for reconsideration is refused.
John Saunders
17 February 2025