The Parole Board for England and Wales

 

[2025] PBRA 43

 

 

 

Application for Reconsideration by Piper

 

Application

 

1.   This is an application by Piper (the Applicant) for reconsideration of a decision of an oral hearing panel dated 2 January 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 703 pages and the application for reconsideration.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 27 January 2025. It has been drafted by legal representatives on behalf of the Applicant. It submits that the decision was irrational. The submission is supplemented by written arguments to which reference will be made in the Discussion section below.

 

Background

 

5.   The Applicant received an extended sentence of 10 years 3 months imprisonment for sexual assault on a child under 13 years. The sentence was made up of a custodial term of 5 years 3 months with an extended licence of 5 years. At the same time he was sentenced concurrently to 6 months imprisonment for distributing indecent images of children. His sentence expiry date is October 2027. He was released on 19 October 2022, had his licence revoked on 1 September 2023 and was returned to custody on 2 September 2023. This is his first review after recall.

 

6.   The Applicant was 53 years old at the time of sentencing and is now 60 years old.

 

Current parole review

 

7.   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.

 

8.   The case proceeded to an oral hearing via videoconference on 5 December 2024. The panel consisted of an independent member and a psychologist member. It heard evidence from the Applicant, together with his Prison Offender Manager (POM), Community Offender Manager (COM), a prison psychologist and a prisoner instructed psychologist. 

 

9.   The panel did not direct the Applicant’s release.

 

The Relevant Law

 

10.The panel correctly sets out in its decision letter dated 2 January 2025 the test for release.

 

Parole Board Rules 2019 (as amended)

 

11.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)).

12.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

 

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.

The reply on behalf of the Respondent

 

19.The Respondent has submitted no representations in response to this application.

 

Discussion

 

20.The application notes the evidence presented by the witnesses, submits that the panel did not fully consider the intervention work undertaken by the Applicant and did not discuss in its decision letter the work completed by the Applicant. The application submits that in the light of the conclusion from the professionals that risk was manageable in the community, the panel’s conclusion not to direct release was irrational. 

 

21.The panel considered all the evidence contained in the dossier and heard evidence from witnesses. In addition, the Applicant was legally represented and had the opportunity to question witnesses and make closing submissions. The panel is not obliged to set out in its decision letter every piece of evidence read or heard. The panel noted the assessment of the professionals regarding the lack of necessity of outstanding core work to be completed in custody. The panel also noted the one-to-one work undertaken with the POM.

 

22.As the application notes, it is for the panel to make its own risk assessment based on all the evidence presented including that of the Applicant. The panel did so and reached a decision which cannot be described as irrational according to the test set out above. 

 

23.The panel attached weight to the fact that the Applicant is unwilling to discuss his index offending thus leaving open the concern that his risk factors are not fully understood. Nothing in the submissions or the application undermines that conclusion. The panel also attached weight to the fact that when released on licence the Applicant breached his licence conditions indicating, in the panel’s opinion, a willingness to breach trust. Again, nothing in the submissions or application undermines that conclusion. His COM, who would have the responsibility for managing the risk management plan, had reservations about his openness and honesty and reservations about re-release.

 

24.The application submits that the professionals came to the conclusion that risk was manageable in the community and submits that the decision goes against the evidence and the cogency of the arguments put forward. I do not agree. The panel undertook its own assessment on the entirety of the evidence and preferred the evidence of the COM which identified the Applicant’s lack of openness, lack of honesty, disguised compliance and difficulty with management. The panel’s decision may not be that hoped for by the Applicant but the reasons are clearly set out and cannot be described as irrational. 

 

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

26 February 2025