The Parole Board for England and Wales

 

 

[2025] PBRA 60

 

 

 

Application for Reconsideration by Lewis

 

 

Application

 

1.   This is an application by Lewis (the Applicant) for reconsideration of a decision of a Parole Board panel dated 14 February 2025 at an oral hearing on the 11 February 2025 not to direct his release.

 

2.   Rule 28(1) of the Parole Board (PB) 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:

 

a.    The dossier now containing 342 pages including the decision sought to be reconsidered.

b.   Undated handwritten grounds sent in by the Applicant which enclose a letter in support of the Applicant dated 26 February 2025.

 

Request for Reconsideration

 

4.    The application for reconsideration is dated 28 February 2025.

 

5.   The decision is said to be irrational because:

 

a.    All three of the professionals who gave evidence, the Prison Offender Manager (POM), the Community Offender Manager (COM), and the Psychologist recommended release.

 

b.   The Applicant has been held on a Progression Unit for “the past several years”. This Unit replicates any of the features of an open prison so that it can be said that the Applicant has in effect completed a period in conditions similar to open conditions.

 

 

c.    During his time in the Progression Unit the Applicant has progressed to the highest level available within the Unit. Fellow prisoners at the Unit who have progressed in the same way have now been released by direction of the PB following serving minimum terms similar to that imposed on the Applicant after trial.

 

d.   The Applicant has the opportunity to go straight into employment on release.

 

e.    The Applicant has a support network via close family members.

 

f.     Release to a particular Approved Premises (AP) in Leeds would assist him in his progress in the community and the proposed employment referred to at paragraph 4 above.

 

g.   The Applicant’s mother, now on her own following the death of her husband, the Applicant‘s father, would benefit from the presence of the Applicant in the community.

 

h.   Those important family ties would be more difficult for the Applicant to maintain if the Applicant were in the open prison in Doncaster when his mother lives in Leeds.

 

i.     The grounds attach a letter from ‘Recycling Lives’ with whom the Applicant has been working since 2021 while in custody, offering him practical support on which he could rely following his release from prison on licence.

 

6.   The Applicant is now 43 years old. His only conviction is for the index offence of murder committed in September 2004 for he was sentenced to life imprisonment with a minimum term to be served of 19 years, 4 months and 3 days.

Current parole review

 

7.   This case was referred to the Parole Board for consideration in November 2023, in advance of his Tariff Expiry Date of 12 September 2024.

 

8.   The Parole panel consisted of two lay and one psychologist members.

 

The Relevant Law

 

9.   The panel correctly sets out in its decision letter (DL) at paragraphs 4.1-7 the test for release as well as the issues to be addressed in making a recommendation to the Secretary of State for a progressive move to open conditions at paragraph 4.8.

 

 

Parole Board Rules 2019 (as amended)

 

10.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)).

11.Rule 28(2) of the Parole Board Rules provides the sentence types which are eligible for reconsideration. These include indeterminate sentences (rule 28(2)(a)).

 

12.A decision 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. The decision sought to be reconsidered in this application is the panel’s decision not to order the Applicant’s release.

Irrationality

 

13.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.

 

14.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.”

 

15.In R(on the application of Wells) -v- Parole Board 2019 EWHC 2710 (Admin) 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).

 

16.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.

 

17.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.

 

18.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.

19. 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), 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.

 

20.It is possible to argue that mistakes in findings of fact made by a decision maker result in the final decision being irrational, but the mistake of fact must be fundamental. The case of E v Secretary of State for the Home Department [2004] QB 1044 sets out the preconditions for such a conclusion: “there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter; the fact or evidence must have been "established", in the sense that it was uncontentious and objectively verifiable; the appellant (or his advisors) must not have been responsible for the mistake; and the mistake must have played a material (though not necessarily decisive) part in the tribunal's reasoning.” See also R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] AC 295, which said that in order to establish that there was a demonstrable mistake of fact in the decision of the panel, an Applicant will have to provide “objectively verifiable evidence” of what is asserted to be the true picture.

 

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."

 

 

Reconsideration as a discretionary remedy

 

22.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)

 

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

 

Discussion

 

24. The decision of the panel following evidence given by three professionals and supported by the Applicant and his Legal Representative no doubt will have come as a deep and unexpected disappointment. No doubt fellow life sentenced prisoners in his prison have been directed for release by the PB. However, as the authorities make clear, the test for “irrationality” is very high. I have studied the DL for evidence of the thought process which led the panel to conclude that release should not be directed but that the SoSJ should be asked to transfer him to Open Conditions.

 

25. What was it about the Applicant which persuaded the panel to go against the recommendations of the professionals? And was the result an ‘irrational’ decision measured by the high standards set by the authorities cited above?

 

26. The panel explained its reasoning at paragraphs 4.3-6 of the DL and concluded that the “skills gained from treatment” needed to be tested in less secure conditions before he should be released, bearing in mind that the PB has to consider risk for an “indefinite period”. The index offence was highly unusual, being marked by careful planning and extreme violence with nothing in the background of the Applicant to indicate that he would be capable of such behaviour. His perhaps understandable unwillingness to admit what he did set against his acceptance that ”he is rightly treated as being convicted” was undoubtedly - and justifiably - a factor in the panel’s decision. It was certainly not an ‘irrational’ consideration measured against the high bar set by the authorities.

 

27. I have considered - as it is clear the panel did at paragraphs 3.5-9 - the matters set out by the Applicant at paragraph 5 a.-i. above.

 

28. While it may be that another panel may have come to a different conclusion, it cannot be said that this careful analysis and the resulting decision was ‘irrational’.

        

Decision

 

29. Accordingly, this application for reconsideration is refused.

 

 

 Sir David Calvert-Smith

25 March 2025