The Parole Board for England and Wales

 

[2025] PBRA 49

 

 

Application for Reconsideration by Parsons

 

 

Application

 

1.   This is an application by Parsons (the Applicant) for reconsideration of the decision of the Parole Board, following an oral hearing on 14 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 supplied, these comprise:

 

a.    The dossier, now comprising 723 pages including the decision letter (DL) the subject of this application.

b.   Written submissions dated 17 January 2025 sent in by the Applicant’s legal representative to the Parole Board panel following the hearing.

c.    The Grounds submitted in support of the application.

d.   An email dated 25 February 2025 on behalf of the Secretary of State (the Respondent) indicating that she does not wish to make representations in respect of the application.

 

Background

 

4.   The Applicant is now 33 years old. In July 2012 he was convicted of attempted murder and sentenced to detention for public protection. His “tariff” expired in October 2019 and following a Parole Board direction he was released from prison on licence in December of the same year. In February 2023 his licence was revoked and he was returned to prison.     

 

Request for Reconsideration

 

5.   The Grounds submitted by the Applicant’s legal representative are set out in full below: 

 

“Irrationality

 

         i. “In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin), the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said 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.”

 

        ii. “This test was set out by Lord Diplock in [1985] AC 374. The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing ‘irrationality’. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.

 

       iii. “Within published reconsideration mechanism reviews the Board appears to miss out the most recent Judgment from the High Court of Wells, R (On the Application Of) v Parole Board [2019] EWHC 2710 (Admin) adopted a modern approach to Wednesbury irrationality. Justice Saini in Wells noted:

 

 

A more nuanced approach in modern public law is 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.

 

“I emphasise that this approach is simply another way of applying Lord Greene MR's famous dictum in Wednesbury (at 230: "no reasonable body could have come to [the decision]") but it is preferable in my view to approach the test in more practical and structured terms on the following lines: does the conclusion follow from the evidence or is there an unexplained evidential gap or leap in reasoning which fails to justify the conclusion?

 

“Background

 

       iv.“[The Applicant] is serving an IPP sentence which he received on 2 July 2012, when he was 19. The details of the offence are contained in the decision which we do not dispute. [The Applicant] was recalled in February 2023 and this oral hearing relates to his review following this recall.

“SUBMISSIONS

 

        v.“These submissions will argue that the decision is irrational, At the oral hearing which took place on 14^th January 2025. The panel heard oral evidence from the POM, COM Prison Psychologists, representing HMPPS, and independent psychologist instructed on behalf of the client.

       vi.“The review has been procedurally unfair in failing to obtain witness attendances or primary evidence in witness statements, all information that we sought to be relied upon was hearsay.

 

     vii.“We say that the hearsay evidence is so weak it was unfair to use it, there has been an overreliance on the evidence, resulting in the panel then concluding further risk areas for him to address.

 

    viii.“In [the Applicant’s] case there are points whereby the evidence was in such poor state the panel says it does not make fact finding; therefore, it raises issue on the paucity of evidence obtained and considered, but yet relied upon.

 

       ix.“Our further arguments rest on irrationality being the panel have put weight on two unproven matters of concern as a sole basis for new risk factors to be identified, and to suggest core and unaddressed risks as a result, is irrational and/or unfair.

 

        x.“We refer to Pearce judgment [R (on the application of Pearce and another) (Respondents) v Parole Board for England and Wales (Appellant) [2023] UKSC 13] Lords Hughes and Hodge said in Pearce, whilst concerns can be held over unproven matters the panel’s “assessment of the weight to be attached to an allegation is subject to the constraints of public law rationality”. They concluded that “(viii) Thus, a failure to make findings of fact where it was reasonably practicable to do so or an irrational reliance on insubstantial allegations could be a ground of a successful public law challenge”.

 

       xi.“We submit this case present a rationality challenge to deprivation of liberty based on unproven matters. The irrationality and reliance on unsubstantial allegations have then led to the panel adding more areas of risk, that is said needs exploring and addressing in closed conditions, subsequently making their decision that [the Applicant] needs to remain in closed conditions as the panel deemed to be listing core risk reduction work to be completed.

 

     xii.“We also raise the issue on the same grounds as above that given [the Applicant] is serving an indeterminate sentence case. We submit there has been unfairness and irrationality contrary to Article 5(1) and (4) ECHR, the reliance on unproven matters. [The Applicant] now faces a further time in custody with little progress being made, because of the way in which despite no finding of fact being made, the information which was not thoroughly examined due to its limitations i.e. this being third party information, led the panel to concluding there were more risk areas that required addressing in the closed estate.

 

    xiii.“It is submitted that the decision is irrational, and it follows that it should be reconsidered.”

Current parole review

 

6.   The case was referred to the Parole Board in March 2023.

 

The Relevant Law

 

7.   The panel correctly sets out in its DL the test for release.

 

Parole Board Rules 2019 (as amended)

 

8.   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)).  

 

9.   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)). This is an eligible sentence.

 

Irrationality

 

10.In R (DSD and others) v the Parole Board [2018] EWHC 694 (Admin), the Divisional Court set out the test for irrationality to be applied in judicial reviews of Parole Board decisions. It said 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.”

 

11.This test was set out by Lord Diplock in CCSU v Minister for the Civil Service [1985] AC 374. The Divisional Court in DSD went on to indicate that in deciding whether a decision of the Parole Board was irrational, due deference had to be given to the expertise of the Parole Board in making decisions relating to parole. The Board, when considering whether or not to direct a reconsideration, will adopt the same high standard for establishing “irrationality”. The fact that Rule 28 contains the same adjective as is used in judicial review shows that the same test is to be applied.

 

12.The DSD case is an important case in setting out the limits of a rationality challenge in parole cases. Since then another division of the High Court in R (on the application of Secretary of State for Justice v Parole Board [2022] EWHC 1282 Admin) (the Johnson case) adopted a “more modern” test set out by Saini J in R (Wells) v Parole Board [2019] EWHC 2710 (Admin).

 

13.In the Wells case Saini J set out “a more nuanced approach” at paragraph 32 of his judgment when he said: “A more nuanced approach in modern public law is 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”.

 

14.It must be emphasised that this is not a different test to the Wednesbury reasonableness test. In the Wells case Saini J emphasised at paragraph 33 that “this approach is simply another way of applying” the Wednesbury irrationality test.

 

15.What is clearly established by all the authorities is that it is not for the reconsideration member deciding an irrationality challenge on a reconsideration - or a judge dealing with a judicial review in the High Court - to substitute his or her view for that of the panel who had the opportunity to see the witnesses and evaluate all of the evidence. It is only if a reconsideration member considering the application decides that the decision of the panel did not come within the range of reasonable conclusions that could be reached on all of the evidence, that he or she should allow the application.

 

16.Panels of the Board are wholly independent and are not obliged to adopt the opinions or recommendations of professional witnesses. The panel’s duty is clear and it is to make its own risk assessment and to evaluate the likely effectiveness of any proposed risk management plan. That will require a panel to test and assess the evidence and decide what evidence they accept and what evidence they reject.

 

17.Once that stage is reached, following the guidance provided by such cases as Wells a panel should explain its reasons whether or not they are going to follow or depart from the recommendation of professional witnesses.

 

18.The giving of reasons by a decision maker is “one of the fundamentals of good administration” (Breen v Amalgamated Engineering Union [1971] 2 QB 175). When reasons are provided, they may indicate that a decision maker has made an error or failed to take a relevant factor into account. As I understand the principles of public law engaged in deciding this application, an absence of reasons does not automatically give rise to an inference that the decision maker has no good reason for the decision. Neither is it necessary for every factor to be dealt with explicitly for the reasoning to be legally adequate in public law.

 

19.The way in which a panel fulfils its duty to give reasons will vary depending on the facts and circumstances in any particular case. For example, if a panel is intending to reject the unanimous evidence of professional witnesses then detailed reasons will be required. In Wells at paragraph 40 Saini J said: “The duty to give reasons is heightened when the decision maker is faced with expert evidence which the panel appears, implicitly at least, to be rejecting”.

 

20.When considering whether this decision is irrational, I will keep in mind that it is the decision of the panel who are expert at assessing risk; importantly it was the panel who had the opportunity to question the witnesses and to make up their own minds what evidence to accept. My function is to decide whether the panel in this case erred in law or reached a decision that was ‘Wednesbury’ unreasonable and/or procedurally unfair in some respect.

 

Other

 

21.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."

 

The reply on behalf of the Secretary of State

 

22.The Respondent has offered no representations in respect of this application.

 

Discussion

 

23.As to the “procedural irregularity” alleged in paragraph vi of the grounds, the suggestion that the Parole Board should summon lay witnesses to a hearing to conduct its own trial(s) of allegations which the prison, the police or the CPS have decided not to proceed with is a fanciful one. The Board is bound to deal with criminal allegations which have not been proved to the criminal standard in the ways set out in the authorities quoted above.

 

24.I have listened to the recording of the hearing which lasted just short of 5 hours.

 

25.The only decision amenable to reconsideration is the decision not to direct release. A decision to recommend - or not recommend - an offender’s transfer to open conditions is not so amenable.

 

26.I have considered carefully whether the reasoning set out at paragraphs 2-3 of the DL rendered the decision “irrational” when measured against the standards set by the courts in the authorities set out above. I have come to the clear conclusion that it is not.

 

27.At Paragraph 2.19 the DL sets out its findings on the matters of fact, both those accepted by the Applicant and, where disputed, the conclusion as to the fact alleged and its weight. It must be remembered in this context that while a number of different allegations made in respect of an offender may not themselves be capable of proof to either the criminal or civil standard, the fact that there are a significant number of them may justifiably lead to a panel concluding that there is sufficient reason to find that the relevant risk has not been reduced so far as to allow a direction for release in a case such as this concerning a prisoner whose index offence was one of attempted murder.

 

28.At paragraph 3.1 the panel accurately set out a summary of the positions adopted by the professionals in the case. Two of them recommended release (one of them adding that were the panel to place weight on the recent allegations she would instead recommend the Applicant’s transfer to open conditions) and two recommended that the Board should recommend to the Respondent that he be transferred to open conditions.

 

29.The grounds focus on the weight attached to the allegations made - excluding the many breaches of his licence which the Applicant admitted. I have looked again at the authorities which discuss this difficult area. I reject the submission that the panel applied a mistaken method of assessing those allegations, both during the hearing and in the DL.

 

30.The panel’s conclusion at paragraph 3.6 was clearly one which it was entitled to reach having studied the papers and heard from the witnesses, in particular of course the Applicant. It would be remarkable if a decision not to release which was only (conditionally) supported by one of the professional witnesses to give evidence could be characterised as irrational.

 

31.Ultimately it was for the panel to decide one way or another between the 3 options open to it following the referral from the Respondent. The DL carefully - and accurately - summarised the evidence which it had heard over the lengthy hearing. It may be that another panel may “rationally” have come to a different conclusion - in particular as to the Applicant’s suitability for transfer to open conditions - but the decision not to direct release falls far short of being characterised as “irrational” in the sense set out in the authorities cited - see in particular paragraphs 10-20 above.

 

32.It will of course be a matter for the Respondent to decide whether the Applicant is to be transferred in due course to open conditions.

 

Decision

 

33.The application is therefore dismissed.

 

Sir David Calvert-Smith

12 March 2025