The Parole Board for England and Wales

 

[2025] PBRA 53

 

 

Application for Reconsideration by Lanning

 

 

Application

 

1.   This is an application by Lanning (the Applicant) for reconsideration of a decision dated 5 February 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 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.

 

3.   I have considered the application on the papers. These are the decision, the dossier (consisting of 408 numbered pages), and the application for reconsideration.

 

Background

 

4.   On 20 October 2006, the Applicant received a sentence of imprisonment for public protection (IPP) following conviction after trial for aggravated burglary. The tariff was set at 42 months less time spent on remand and expired in January 2010.

 

5.   The Applicant was 22 years old at the time of sentencing and is now 41 years old.

 

6.   He has been released and recalled three times on this sentence. He was most recently released following an oral hearing on 4 August 2022. His licence was revoked on 26 June 2024, and he was returned to custody on 29 June 2024.

 

Request for Reconsideration

 

7.   The application for reconsideration has been submitted by the Applicant and pleads both procedural unfairness and irrationality.

 

8.   This is supplemented by written arguments to which reference will be made in the Discussion section below.

 

Current Parole Review

 

9.   The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in July 2024 to consider whether to direct his release. This is the Applicant’s first parole review since his third recall.

 

10.The case proceeded to an oral hearing on 4 February 2025, before a two-member panel. Oral evidence was taken from the Applicant, the Prison Offender Manager (POM), and the Community Offender Manager (COM). The Applicant was legally represented throughout the hearing.

 

11.In the professional opinion of both the COM and POM, the Applicant was suitable for release. The panel did not direct his release.

 

The Relevant Law

 

12.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)

 

13.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)).

 

14.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)).

 

15.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

 

16.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.

 

17.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.”

 

18.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).

 

19.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.

 

20.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.

 

21.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

 

22.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.

 

23.In summary an Applicant seeking to complain of procedural unfairness under rule 28 must satisfy me that either:

 

(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; and/or

(e)         the panel was not impartial.

 

24.The overriding objective is to ensure that the Applicant’s case was dealt with justly.

 

The reply on behalf of the Respondent

 

25.The Respondent has advised that no representations will be submitted in response to this application.

 

Discussion

 

Procedural unfairness

 

26.The Applicant first argues that the decision was procedurally unfair as the panel did not follow the guidelines set out in Parole Board published Imprisonment for Public Protection (IPP) Guidance.

 

27.He does not, however, explain how the panel has failed to follow this guidance. It is not for me to apply the guidance to the decision and decide whether it has been followed sufficiently. It is for the Applicant to make his case, and he has not done so.

 

28.The Applicant also argues that the process failed to comply with Article 5 of the European Convention on Human Rights. My concern is the lawfulness of the decision-making process and not the lawfulness of the IPP sentence. I find no procedural error in the way in which the panel has reached its decision.

 

Irrationality

 

29.The Applicant also argues that:

 

a.    It was irrational to conclude that prison was the best place for risk-reduction work to take place given that services and courses are more readily available in the community;

b.   It was irrational not to consider the psychological effects of further detention;

c.    It was irrational for the panel to give weight to risks within the Applicant’s relationship, since his partner has admitted lying to police and the Probation Service, and has repeated that she has never felt threatened or endangered within their relationship.

 

30.I shall deal with these points in turn.

 

31.First, the panel’s overriding concern is public safety and not the ready availability of interventions. If the panel considered, as it did here, that the Applicant was not safe to be released, then that must be the end of the matter. The panel gave extensive evidence-based reasons (at para. 4.8) as to why this was so. It had justifiable concerns about the likely effectiveness and intensity of community-based programmes.

 

32.Second, the codified public protection test (set out in Annex B of the decision) sets out the matters which the panel must take into account. Although this list is not exhaustive, the panel is not specifically charged with considering the psychological effects of further detention. Again, I must return to the fact that the panel’s overriding concern is the safety of the public.

 

33.Third, the panel set out its reasons for concluding that there was a serious possibility that the allegations concerning the Applicant’s partner were true (at paras. 4.3 to 4.6). These reasons were supported by evidence and were more than sufficiently clear to discharge the common law duty to give reasons imposed by Wells.

 

34.I find that the panel’s decision was not irrational in law.

 

Decision

 

35.For the reasons set out above, the application for reconsideration is refused.

 

 

Stefan Fafinski

17 March 2025