The Parole Board for England and Wales

 

 

[2025] PBRA 59

 

 

 

Application for Reconsideration by Shankly

 

 

Application

 

1.   This is an application by Shankly (the Applicant) for reconsideration of a decision of an oral hearing dated 12 February 2025 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 Decision Letter (DL)

·        The Application for Reconsideration dated 5 March 2025

·        The dossier, which consists of 548 numbered pages, ending with the (amended) Decision Letter

 

Request for Reconsideration

 

4.   The grounds for seeking a reconsideration are set out in a lengthy Application. I summarise the issues raised as follows:

 

A.   The panel applied the wrong test for release:

(1)        The Parole Board must direct release unless it is satisfied that continued detention remains necessary for public protection. This requires consideration of whether risk can be managed in the community under the proposed risk management plan, rather than a requirement for complete risk elimination.

(2)        The decision does not engage rationally with the structured, multi-agency risk management plan, which provides extensive safeguards to mitigate any residual risk.

(3)        The panel concluded that risk could not be managed in the community without offering a sufficient or reasoned basis for rejecting the professional opinions of key witnesses who supported release. “This is a fundamental legal error.”

 

B.   Irrational departure from evidence:

(1)        The decision fails to rationally explain why the unanimous professional evidence supporting release was rejected.

(2)        Instead of engaging with the evidence of the professionals, the panel substituted its own untested and speculative conclusions.

(3)        The panel’s view that the Applicant had demonstrated only 3 months of stability is a misinterpretation of the evidence and fails to account for the broader context of his progress.

 

5.   The Application goes on to list a number of matters which are said to support release. It is not suggested that the panel was not aware of these matters.

 

C.   Contested points in decision:

(1)        Although the Applicant has in the past shown a pattern of disengagement, it has clearly been broken in recent years.

(2)        The panel was irrational in concluding that logged security concerns showed behaviour which could have resulted in violence or psychological harm in the community. The behaviour in question stems from the Applicant being in custody.

(3)        The panel’s scepticism about the Applicant’s explanation for security entries was unfounded. The professional witnesses accepted his explanations.

(4)        The panel placed excessive weight on historic conduct while failing to properly acknowledge sustained recent progress.

(5)        It is unreasonable to suggest that a lack of actual violence for almost 11 years is insufficient to show a reduction in risk.

(6)        The panel should not have paid any regard to unsubstantiated security entries.

(7)        The panel placed undue stress on other offences committed by the Applicant near the time of the index offence of murder.

(8)        There is no imminent or active risk arising from his current relationship.

(9)        The panel failed to consider the proportionality of continued detention, when a less restrictive alternative (residence in the community in psychologically supportive accommodation) was available. Consolidation work in custody is superfluous. “The decision disregards human rights considerations, particularly [the Applicant’s] Article 5 rights to liberty and security under the ECHR.”

(10)     “The Board’s failure to weigh less restrictive means of managing risk amounts to a procedural and substantive legal error.”

6.   The Application concludes by submitting that the decision is irrational because it does not present a fair and rational conclusion based on the evidence before the panel; it is unlawful because it misapplies the public protection test and fails to engage properly with professional risk assessments that were put before the panel; the decision not to release is “disproportionate and simply unjustifiable”.

 

Background

 

7.   The Applicant is now 41 years old. In 2003, when he was 19, he received a sentence of detention during Her Majesty’s Pleasure (that is, the equivalent for an offender of his age to a sentence of life imprisonment) for an offence of murder, with a minimum term set at 56 months. At the same time he was sentenced for an offence of causing grievous bodily harm with intent to do so, to an effective 4 years detention in a Young Offender Institution. His tariff expired in November 2017. He had previous findings of guilt for assault occasioning actual bodily harm when he was 11, and for offences involving driving with excess alcohol and without the consent of the owner.

 

8.   The Applicant committed the index offence of murder when he was 17. The victim was 38 and vulnerable. The Applicant pleaded Not Guilty to murder, but now accepts his guilt. He now says that he deliberately went to the victim’s home anticipating that the victim would make a sexual advance to him which would give him an excuse to attack him. He attacked the victim for 30 minutes, tied him by the wrists and ankles and gagged him. He then set fire to the victim’s home. The Applicant was drunk when he committed this offence.

 

9.   A few weeks earlier, in similar circumstances, the Applicant attacked a 71 year old man in his home, tied him by the wrists and ankles and gagged him. At the time of the murder the Applicant was on bail for an offence which was not proceeded with. He told a previous panel that at the time his life was chaotic: it was not unusual for him to walk around town on a Friday or Saturday night looking for someone to attack.

Current parole review

 

10.The Secretary of State (the Respondent) referred the Applicant’s case to the Parole Board in June 2023, for consideration of a direction for release or, alternatively, a recommendation for a transfer to open conditions. The panel thought that, the Applicant having previously absconded from open conditions, he was probably ineligible for such a recommendation. Nonetheless, the panel included open conditions as an option in its considerations. This was the seventh review of the Applicant’s sentence.

 

11.The panel that conducted the oral hearing consisted of a judicial member of the Parole Board as chair, an independent member and a psychologist member. At a hearing on 21 August 2024 the panel adjourned the case with a direction for an Autistic Spectrum Disorder (ASD) assessment. The final hearing took place on 3 February 2025, by video link. The following witnesses gave evidence: the Applicant; his partner; a senior mental health nurse; the Applicant’s Prison Offender Manager (POM); a forensic pathologist; and the Applicant’s Community Offender Manager (COM). The Applicant was legally represented throughout. The representative asked questions of the witnesses, including the Applicant, and made submissions. The Respondent chose not to be represented. The panel considered a written Victim Impact Statement, which was included in the dossier. The dossier at the hearing consisted of 510 pages.

 

The Relevant Law

 

12.The panel correctly sets out in its decision letter 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. The correct test for release is not precisely that advanced in the Application. The panel applied, as it must, the codified public protection test set out in the DL. The test for release is that the Board must not give a direction for release unless it is satisfied that it is no longer necessary for the protection of the public that the Applicant remain confined. At paragraph 4.A.(1) the Application puts the matter slightly the other way round: “must release … unless satisfied that continued detention remains necessary”.

 

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)). This is an eligible decision, and this is an eligible sentence.

 

14.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

 

15.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.

 

16.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.”

 

17.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).

 

18.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.

 

19.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.

 

20.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

 

21. 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 focuses on the actual decision.

 

22. 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.

 

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

 

Error of law

 

24. 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.

 

25. 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.

 

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."

 

The reply on behalf of the Secretary of State

 

27.The Respondent has indicated that she does not wish to respond to this Application.

 

Discussion

 

28.The panel did not apply the wrong test for release. It applied the correct test but came to an answer which the Applicant does not like. That is not a ground for reconsideration. The panel considered whether risk could be managed in the community under the proposed risk management plan, and concluded that it could not, giving its reasons. The panel essentially considered that, after many years of unstable behaviour, the Applicant’s behaviour had improved, but for too short a period for the panel to be confident that there was clear and convincing evidence of stability over an extended period of time.

 

29.The panel noted in particular the Applicant’s absconding from open prison in 2014; incidents of violence and boundary-pushing up to 2021; adjudications for using threatening words and behaviour in 2022; and documented allegations of threats of violence to staff. In 2022 the Applicant was referred to a Progressive Unit, but the referral was rejected because he had not shown evidence of a 3-month period of stability. There were reports in 2023 of his expressing his frustration at not being transferred by threatening a member of staff and saying he was going to take a member of staff hostage and torture them. There were security entries in 2024 about his carrying, or, as he told the panel by way of explanation, feeling like carrying, a pen in order to stab staff. The panel accepted that the Applicant’s behaviour had shown improvement in the calmer conditions where he had resided for 3 months. The panel did not accept the witnesses’ view that he had shown sufficient stability for significantly longer than that. The panel noted the psychologist’s concern that the Applicant’s new relationship, with a woman he met in prison who has a son with complex needs, involved potential risks were it to break down.

 

30.Overall, these were matters for the panel to weigh. The panel’s conclusion is not irrational in the sense set out above. Provided the panel sets out its reasons, which this panel did, there is nothing procedurally wrong with the decision. The panel acknowledged that it was disagreeing with the professional opinions of the witnesses, and explained clearly why it was doing so.

 

31.It is not for the panel to consider the proportionality of continued detention. Were the panel to do so, it would be applying a different test from that set out by statute. Nor is it an infringement of a prisoner’s Article 5 EHCR rights not to release him during the course of a lawfully imposed sentence. There is no error of law in the decision.

 

Decision

 

32.For the reasons I have given, I do not consider that the decision was irrational, or procedurally unfair, or involved any error of law, and accordingly the application for reconsideration is refused.

 

 

 

Patrick Thomas

25 March 2025