The Parole Board for England and Wales

 

 

[2025] PBRA 55

                      

 

Application for Reconsideration by Armstrong

 

 

Application

 

1.   This is an application by Armstrong (the Applicant) for reconsideration of a decision of an oral hearing panel dated 13 February 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, the application for reconsideration, and the decision of the panel.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 4 March 2025.

 

5.   The grounds for seeking a reconsideration are summarised below.

 

Background

 

6.   The Applicant is serving a sentence of imprisonment for public protection. The sentence was imposed on 2 December 2009. The offences were two instances of rape. The Applicant's tariff expired in April 2015. The Applicant was released by the Parole Board on 4 September 2017 and his licence was revoked in July 2024.

 

7.   The index offences were committed when the Applicant was 20 years old. There were two victims. The offences against both the female victims (who were unconnected) were committed within a very short time of each other. Both victims suffered significant physical injury. The first victim was the subject of rape in a park. The Applicant had met the victim earlier with a male acquaintance. Later the Applicant approached her, physically struck her and thereafter committed the offence of rape. The second rape offence occurred a few minutes later. The victim knew the Applicant. The Applicant grabbed the victim from behind, pulled her through a fence and physically struck her. The victim was then raped by being subjected to oral penetration following this physical attack. The Applicant subsequently admitted that alcohol had played a part in the offending. He had also said that he had unresolved historical anger in relation to abuse, which he suffered as a child. The Applicant was recalled following allegations of sexually violent behaviour towards his partner.

 

Current parole review

 

8.   The referral by the Secretary of State requested the Parole Board to consider whether the Applicant, having been recalled, should be directed for release or alternatively whether a recommendation for a transfer to open prison would be suitable. The Applicant was aged 36 at the date of the hearing.

 

9.   The Parole Board oral hearing panel consisted of an independent chair and an independent second Parole Board member. Evidence was given at the hearing by a prison offender manager (POM), and a community offender manager (COM). The Applicant was represented by a solicitor. The Applicant gave evidence at the hearing.

 

The Relevant Law

 

10.The panel correctly sets out in its decision letter dated 13 February 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)

 

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)).

 

13.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

 

14.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.

 

15.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.”

 

16.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).

 

17.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.

 

18.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.

 

19.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

 

20. 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.

 

21. 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;

(e)         the panel did not properly record the reasons for any findings or conclusion; and/or

(f)          the panel was not impartial.

 

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

 

Error of law

 

23.An administrative decision is unlawful under the broad heading of illegality if the panel:

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.

 

24.The task in evaluating whether a decision is illegal is essentially one of construing the content and scope of the instrument conferring the duty or power upon the panel. The instrument will normally be the Parole Board Rules, but it may also be an enunciated policy, or some other common law power.

 

Other

 

25.The test to be applied when considering the question of transfer to open conditions is the subject of a well-established line of authorities going back to R (Hill) v Parole Board [2011] EWHC 809 (Admin) and including R (Rowe) v Parole Board [2013] EWHC 3838 (Admin), and R (Hutt) v Parole Board [2018] EWHC 1041 (Admin). The test for transfer to open conditions is different from the test for release on licence and the two decisions must be approached separately and the correct test applied in each case. The panel must identify the factors which have led it to make its decision. The four factors the panel must take into account when applying the test are:

 

(a)         the progress of the prisoner in addressing and reducing their risk;

(b)        the likeliness of the prisoner to comply with conditions of temporary release

(c)         the likeliness of the prisoner absconding; and

(d)        the benefit the prisoner is likely to derive from open conditions.

 

26.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

 

27.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)

 

28.The Respondent offered no representations.

 

Discussion

 

Ground 1

 

29.It is submitted on behalf of the Applicant that there was insufficient evidence to base a finding in relation to allegations of assault by the Applicant upon his partner (who is identified as the complainant in this decision); in particular it is argued that:

a.    The police report recording the complaint was “a secondary document”.

b.   The police report contained a lie or mistake about whether the complainant knew that the Applicant had a previous rape conviction.

c.    The police report would not be evidence in court.

d.   The panel rejected the revised account by the complainant, despite there being a withdrawal letter from her.

 

Discussion

 

30.The law relating to the procedural requirements in relation to the assessment of allegations in Parole Board hearings was set out in the case of Pearce [2023] UKSC 13 on appeal from [2022] EWCA Civ 4. The Parole Board have published guidance in relation to the treatment of allegations which reflects the decision in Pearce.

 

31.In this case, the panel took account of the decision in Pearce and the guidance in making an assessment of the allegations. The allegations were that the Applicant was physically violent towards the complainant and that the physical violence had a sexual element. The evidence supporting the allegation amounted to a report taken by the police and recorded in police records. The allegation had also been reported separately by the complainant to the Applicant’s probation officer.

 

32.The police report recorded in some detail the nature of the allegation. In addition to the police record of the complaint, the police had investigated the matter and had also been shown an email message from the complainant to the Applicant in which the complainant had reminded the Applicant that he had broken his licence conditions, that he was calculated and devious and that she had saved him from recall on two occasions. This email clearly gave context to the relationship and circumstances at the time of the allegation.

 

33.The panel also took account of a subsequent letter from the complainant indicating that she had not told the truth about the incident and indicating that she did not wish the allegation to be held against the Applicant.

 

34.The panel heard evidence from the Applicant himself. The Applicant denied the allegation involving violence and said that he believed that it was an allegation arising from influence by a friend (of the complainant) and that it was a false allegation made in circumstances where it was known serious consequences would follow.

 

35.It is clear from the written decision that the panel applied both the legal position in relation to Pearce and the Parole Board guidance. Inevitably, in cases of contested allegations a judgement must be made by a Parole Board panel. That judgement must be based upon credible evidence and the application of the civil standard of proof.

 

36.It is argued on behalf of the Applicant that the complainant lacked credibility because of the fact that she had made complaints which were then withdrawn.

 

37.The panel clearly looked with some care at the entirety of the material upon which to reach the decision. The panel took account of the initial complaints, the subsequent withdrawal, and the fact that an email had been sent by the complainant to the Applicant indicating that she had saved him from recall on earlier occasions and that he was devious. The Applicant’s risk factors and history including the index offences were also relevant to the assessment.

 

38.The police message - I am not persuaded that the fact that the complaint was made to the police in a message, which was recorded by the police, undermines the credibility of the information. It is clear that the information, taken by the police officers at the initial stages, was a first-hand account by the complainant herself. The complainant did not later support the matter to a point where a written statement was taken and signed, however, there was a written account taken by the police contemporaneously, from the complainant, of her complaint.

 

39.This is also a case where there was a second repeated confirmation of the nature of the complaint to a different professional, namely the probation officer in this case. The two complaints made by the complainant were consistent with each other.

 

40.In addition to the complaints, the panel took account of the circumstances, at the time of the complaint, relating to the Applicant. The Applicant had returned to gambling, which was a risky area for him. The Applicant also had a history of violent responses to negative situations and a history of using sexually motivated violence in circumstances where he was angry or was decompensating.

 

41.The panel also used their experience of circumstances of reports relating to domestic violence in reaching their decision. The panel noted that it was commonly the case that in circumstances where a complainant wishes to continue a relationship, and where there exists a continuing affection and love for a partner, withdrawal letters are written.

 

42.The panel’s final conclusion, having assessed the entirety of the evidence, was that, on the balance of probabilities, the first complaint, by the complainant, made to the police was true.

 

43.The panel acknowledged that the complainant clearly wished to support the Applicant, for whom she still feels affection. However, the panel indicated that this did not mean that the allegation was untrue.

 

44.Mistake in recording a fact - The representations on behalf of the Applicant indicate that there was a mistake in the initial record taken by the police, namely that the Applicant had not committed rape in the past, whereas in fact he had (and the complainant knew that he had). Whilst this clearly was a mistake either in the recording by the police or in the memory of the complainant, I am not persuaded that it was material given the overall detail of the complaint recorded by the police. It is also not directly relevant to the allegation itself and could not, in itself, undermine the credibility of the complainant.

 

45.Admissibility in court - So far as the representations relating to the admissibility of such evidence in a court are concerned, I am not persuaded that this is a point with merit. The admissibility of hearsay evidence varies depending on the court. Hearsay evidence is admissible in criminal courts under certain circumstances. Hearsay evidence is also admissible in civil proceedings. The important issue, so far as the panel were concerned, was to ensure that they had considered the circumstances of the taking of the evidence and had considered whether those circumstances led to the evidence being credible and of sufficient reliability to enable them to come to a conclusion about the allegation.

 

46.Withdrawal letter - I have also noted the fact that the Applicant’s legal adviser points out that the complainant wrote a lengthy letter withdrawing the allegation. Again, the panel dealt with that issue within the decision letter. The panel’s experience was that such allegations do result, from time to time, in withdrawal letters. The panel noted that this withdrawal letter had been written in the context of the complainant wishing to continue a relationship with the Applicant. In those circumstances I do not determine that the panel were acting irrationally in rejecting the withdrawal letter.

 

47.I am not therefore persuaded that the panel’s decision to accept the initial complaint by the complainant as true, amounted to a procedural irregularity or irrationality in the sense set out above.

 

Ground 2

 

48.It is argued that it was either irrational or procedurally irregular to rely upon the credibility of the complainant in this case.

 

Discussion

 

49.The arguments in relation to the credibility of the complainant were, as noted above, assessed by the panel in reaching a conclusion relating to the complaint. The panel were fully conscious of the fact that the complainant had written a withdrawal letter. The panel explained the reason why they rejected the withdrawal letter and had concluded that the complainant’s initial complaint was true. The panel were empowered to reach a conclusion about these matters, so long as they applied the considerations set out in the case of Pearce. I am satisfied that the panel complied with the requirements of Pearce and of the Guidance on Allegations published by the Parole Board.

 

Ground 3

 

50.It is submitted that the panel inappropriately drew negative inferences in relation to the Applicant’s character in particular relating to gambling, sexual preoccupation, and alcohol.

 

Discussion

 

51.The panel noted in their decision that evidence had been given by the Applicant himself at the hearing. He had said that he had experienced issues with gambling and had been spending money from his employment to gamble. Also noted by the panel (at 2.10 of the decision) was that the Applicant accepted that he had returned to gambling which led to a separation from the complainant in this case.

 

52.At paragraph 2.11 it is noted that the Applicant had embarked upon a relationship with a woman he had met in a nightclub. This had led to difficulties with his relationship with the complainant. Within probation reports it is suggested by professionals that sexual preoccupation was a risk factor so far as the Applicant was concerned. The index offences indicated clear evidence of sexual preoccupation, albeit historically. Again, I am not persuaded that the panel’s finding, that they agreed with the views of professionals, that sexual preoccupation was a risk factor in relation to the Applicant, could be considered to be irrational.

 

Ground 4

 

53.It is suggested that the panel acted irrationally in rejecting the views of the professionals and concluding that the Applicant’s risk could not be safely managed in the community.

 

Discussion

 

54.As is noted by the Applicant’s legal adviser, panels of the Parole Board are not obliged or required to accept the recommendations or views of the professionals. However panels are obliged to take account of recommendations and, if rejecting them, to indicate the basis upon which they have reached the contrary conclusion. Much of the decision in this case turned on the fact or otherwise of the sexual assault allegation, which was potentially a substantial elevation of risk. The allegation was serious, particularly in the context of the index offences. The professionals in this case were inevitably constrained by the fact that, unlike a Parole Board panel, they were not in a position to reach a firm conclusion about the allegations and felt obliged to ignore the allegations because the police had not pursued the matter to a conclusion in court. A Parole Board panel is in an entirely different position. The panel were empowered and able to make a holistic judgement about the allegations and to reach a firm conclusion. The probation officer in evidence, in the hearing, had indicated that, if the allegation was true, the recommendation would not have been for release. There was a clear rationale therefore for the decision of the panel not to support the views of the professionals in this case. The panel also explained in detail why they had reached their decision. The panel indicated that they had come to the conclusion that the index offences themselves caused extremely serious harm and although the Applicant had engaged in offence focused work during his initial sentence, he had committed further offences after release and had, on the finding of the panel, sexually assaulted the complainant. The panel took the view that the Applicant’s risk could not be managed on the basis of this finding. They took the view that there remained outstanding treatment needs which had to be addressed and revisited in order to manage risk.

 

55.As indicated above, therefore, I am not persuaded, having considered all the representations on behalf of the Applicant in the application for reconsideration, that the decision of the panel was either procedurally unfair or irrational in the sense set out above. I therefore decline to order reconsideration.

 

Decision

 

56.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

19 March 2025