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You are here: BAILII >> Databases >> The Parole Board for England and Wales >> Robinson, Application for Reconsideration [2025] PBRA 50 (13 March 2025) URL: http://www.bailii.org/ew/cases/PBRA/2025/50.html Cite as: [2025] PBRA 50 |
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[2025] PBRA 50
Application for Reconsideration by Robinson
Application
1. This is an application by Robinson (the Applicant) for reconsideration of a decision of a single member panel dated the 29 January 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 now consisting of 392 pages, the application for reconsideration drafted by the Applicant’s legal adviser and the panel member’s decision.
Request for Reconsideration
4. The application for reconsideration is dated 26 January 2025 and received on the 26 February 2025.
5. The grounds for seeking a reconsideration are set out below.
Background
6. The Applicant is serving a sentence of life imprisonment for the offences of murder, attempted murder and ABH. He was 26 years old at the time of sentence. He is now 64. His sentence tariff expired in February of 2006. The victim was his then partner. The attempted murder occurred in circumstances where the Applicant tried unsuccessfully to strangle his then partner. Later he arranged, in return for a large cash sum, for accomplices to murder his partner. His partner was found dead at her home.
Current parole review
7. This was the tenth review by the Parole Board. The case was referred by the Secretary of State (the Respondent) to consider whether the Applicant should be directed for release or transferred to (or remain in) an open prison. The case was concluded on the basis of the papers by a single Parole Board member on the 29 January 2025. The Parole Board member considered the dossier and representations by the Applicant.
The Relevant Law
8. The panel correctly sets out in its decision letter dated 29 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)
9. 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)).
10.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)).
11.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
12.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.
13.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.”
14.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).
15.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.
16.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.
17.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
18.Procedural unfairness means that there was some procedural impropriety or unfairness resulting in the proceedings being fundamentally flawed and therefore, producing a manifestly unfair, flawed, or unjust result. These issues (which focus on how the decision was made) are entirely separate to the issue of irrationality which focusses on the actual decision.
(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
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.
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."
Reconsideration as a discretionary remedy
25.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
26.The Respondent offered no representations.
Grounds and Discussion
Ground 1
27.It is argued that the Applicant was not given a fair hearing because of a misunderstanding about the status of his legal representative. In particular, because he had dispensed with his legal representative at a time when a notification from a probation officer had been considered, and responded to, by his legal representative. The Applicant argues that the response by the legal representative was without instructions and therefore he (the Applicant) was unfairly treated.
Discussion
28.It is necessary to briefly address the process in this case. The case was originally referred to the Parole Board with a request to consider whether the Applicant should be released or be recommended by the Board for a transfer to an open prison. That referral was initially considered at the member case assessment stage (MCA). This being an initial sifting process of the Parole Board. That sift includes a decision as to how the case should proceed. In this case, the Parole Board member, at the MCA stage, directed that the case should proceed to an oral hearing.
29.In fact, it transpired that shortly before the Respondent had sent the referral to the Parole Board, the Applicant had been transferred from an open prison (where he had been living) back to a closed prison. This was because of an adverse incident being suspected. Initially the Respondent told the Applicant that he would be remaining in the closed prison until the next annual parole review.
30.Later, however, the decision was rescinded. The Applicant was told that, having assessed the adverse incident which led to the Applicant’s transfer out of the open prison, the Respondent had concluded that the Applicant remained eligible to remain in an open prison. The Respondent indicated that the Applicant would be transferred back to an open prison.
31.The Applicant then had a meeting with his probation officer. The probation officer reported that the Applicant told his probation officer that he did not wish to proceed with the forthcoming parole hearing as he wished to develop his release plan and release arrangements before appearing before the Parole Board for an application for release. This would not have been surprising, in the light of the fact that the Applicant was being transferred back to an open prison.
32.The Applicant has subsequently denied that he had told his probation officer that he did not wish to embark upon a parole hearing until later. This was therefore an area of disagreement.
33.Also confusing the matter was the fact that the legal representative who had initially been instructed by the Applicant was not aware that instructions had been withdrawn. That legal representative sent a message to the Parole Board, indicating that he was not able to speak directly with his client. However, on the basis of his knowledge of the previous instructions from his client, he understood that his client’s wish was to prepare himself in an open prison and develop his plan for release. The legal representative therefore supported an application for the hearing to be delayed.
34.The panel chair considered the position at that point. The panel chair was technically considering an application to adjourn the case for a number of months to allow the Applicant to prepare for a parole hearing by developing his release plan when he returned to the open prison.
35.At that point, the panel chair, having considered the position, concluded that an adjournment would be too lengthy to be reasonable. The panel chair therefore indicated that it was the chair’s view that the hearing should be concluded without an oral hearing on the basis of the papers (called a paper hearing). The chair therefore refused the application to adjourn and indicated a view that the matter should be concluded on the papers.
36.A decision to conclude a case on paper, after an MCA assessment has directed an oral hearing, is governed by rule 21 of the Parole Bord Rules 2019. The Parole Board rules require that before making a decision to conclude a case on the papers, the chair is obliged to seek representations from both parties. Once those representations have been sought, the chair is required to consider the representations and is then empowered to either direct that the case should be concluded on the papers, or direct that it should continue as an oral hearing. The decision must be made in the interests of justice.
37.It appears that the panel chair did not formally call for representations at the point where the panel chair had considered that this was a case which engaged rule 21.
38.However, as a result of delays, in fact, representations were presented to the chair by the Applicant before the final decision regarding whether there should be a paper hearing or an oral hearing was made. Those submissions fully set out the position, namely that the Applicant’s former legal representative was no longer instructed. That the Applicant did not consent to a paper hearing but wished to have an oral hearing and that he wished to make an application for release. The Applicant also submitted that he felt that there should be a further psychological risk assessment commissioned.
39.The panel chair also requested further representations from the probation officer involved. The probation officer indicated that the Applicant had said that he did not wish to undertake the oral hearing until he had completed preparation for release, however, the probation officer also indicated that there was no particular view from the probation service as to when any oral hearing should take place. The probation officer also noted, however, that preparations for any resettlement in the community were at a very early stage, and by inference indicated that there would be difficulty in suggesting a robust resettlement and risk management plan.
40.The chair therefore at that point had received appropriate representations from the Applicant and was in possession of the issues. The chair therefore reviewed the position. The chair’s conclusion was that there should be a direction that the matter be concluded on the papers.
41.In the light of this history, it is clear that the procedural requirements for considering whether a hearing should proceed on paper following an MCA decision have been followed. The representations of the Applicant, including the fact that he had terminated the instructions to his legal representative were all considered by the panel chair when the conclusion about a paper decision was made. I am not persuaded that the decision to direct a paper hearing was irrational or procedurally unfair. The decision was made on the basis that the Applicant was just beginning a period of time in an open prison, having been a prisoner for very many years. He had had difficulties with stability in open prisons in the past. He had not formulated a clear plan as to where he would wish to live. This meant that it was unclear what arrangements could be in place within a risk management plan relating to any resettlement in the community. He had also completed a very limited number of temporary leaves in the community.
42.The panel chair in this case considered the case of Osborn and the issues relating to the appropriate circumstances to direct an oral hearing. As indicated in the panel chair’s decision, the Supreme Court accepted that an oral hearing would not be appropriate in all cases. In this case, the panel chair indicated that the risk issues were well understood. There had been an oral hearing relatively recently. At that earlier oral hearing, the issues were determined to be; the need to establish a comprehensive and detailed risk management plan; and an opportunity to allow the Applicant to be tested in the community from an open prison. The panel chair also indicated that it was not considered that a psychological risk assessment would advance the case, particularly as there had been no testing in the community and there was no comprehensive risk management plan or details of the arrangements that the Applicant would be likely to have available in the community.
43.In the circumstances therefore I am not persuaded that the decision to conclude this matter on the basis of the dossier and other papers was irrational or procedurally unfair.
Ground 2 - The decision not to direct release.
44.I have also considered whether the decision itself not to direct release should be reconsidered.
Discussion
45.The Applicant’s legal adviser argues that whilst in open conditions in the past, the Applicant had engaged well with the processes relating to temporary release into the community. He had completed five overnight releases as well as a number of day releases.
46.As indicated above, the decision of the single panel member in this case, not to direct release was based substantially upon the fact that the Applicant was a prisoner who had been in custody for approximately 38 years. There had been a number of difficulties concerned with residence in open prisons. The Applicant was not entirely sure where he would wish to take up residence in the community. It was therefore not possible for the probation service to undertake the detailed assessment of support services, accommodation and other services in the community. These would be matters which would form the bedrock of a risk management plan. The basis of the decision by the panel member was that there was insufficient evidence that the Applicant’s risk could be safely managed in the community, because of the uncertainties relating to the Applicant’s future plans.
47.The panel therefore set out clearly the reasons for the decision not to direct release. In this case. I do not determine that those reasons could be considered irrational or procedurally unfair and I therefore make no direction for reconsideration in this case.
Decision
48.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.
HH Stephen Dawson
13 March 2025