The Parole Board for England and Wales

 

[2025] PBRA 63

 

 

Application for Reconsideration by Denman

 

 

Application

 

1.   This is an application by Denman (the Applicant) for reconsideration of a decision dated 12 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 699 numbered pages), and the application for reconsideration. I have also had access to the audio recording of proceedings.

 

Background

 

4.   On 8 February 2008, the Applicant received a sentence of imprisonment for public protection (IPP) following conviction for threats to kill. His minimum term was set at one year less time spent on remand and expired in October 2008.

 

5.   The Applicant was 27 years old at the time of sentencing and is now 44 years old.

 

6.   The Applicant has been released and recalled to custody six times on this sentence and has received two further convictions for offences committed while on licence.

 

7.   On 22 March 2017, the Applicant received a further determinate sentence of imprisonment for 30 months following conviction for wounding/inflicting grievous bodily harm. This offence was committed in October 2016, while the Applicant was on his second period of release on licence in the community.

 

8.   He was most recently released on 19 June 2023. His licence was revoked on 14 November 2023, following his arrest for alleged domestic offences against his elderly parents. He was returned to custody two days later.

 

9.   On 21 November 2023, the Applicant received two concurrent 14 week sentences for battery.

 

Request for Reconsideration

 

10.The application for reconsideration has been submitted by solicitors on behalf of the Applicant and pleads procedural unfairness, and irrationality.

 

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

 

Current Parole Review

 

12.The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in December 2023 to consider whether to direct his release. This is the Applicant’s first parole review since his sixth recall.

 

13.The review proceeded to an oral hearing on 22 October 2024 before a two member panel. The Applicant’s legal representative sought an adjournment as:

 

a.    the witnesses had not had sufficient time to review a recently provided report from a prisoner-commissioned forensic psychologist; and

b.   as only three hours had originally been allocated for the hearing and there was a late application for an additional witness, then there would be insufficient time to consider the Applicant’s application for release fairly.

 

14.The adjournment was granted. Panel Chair Directions (PCDs) dated 22 October 2024 set out clear reasons for the adjournment decision. Logistics were set for the next hearing, to take place on 5 February 2025 starting at 1pm, to be listed as a Tier 3 case with a third panel member being added.

 

15.Parole Board guidance defines a Tier 3 case as “a two or three-member panel, one of whom can be a specialist if required, with a duration not exceeding four hours”; this would imply a 5pm finish at the latest.

 

16. Further PCDs dated 23 January 2025 note:

 

a.    The panel chair who granted the adjournment in October 2024 was no longer available and a new panel chair had only been allocated to the case “very recently”; and

b.   The new chair considered that a 10am start time would have been preferable, but a 1pm start “allows sufficient time for the hearing with focussed questioning”.

 

17.The case proceeded to an oral hearing on 5 February 2025, before a three-member panel including a psychologist specialist member. Oral evidence was taken from the Applicant, the Prison Offender Manager (POM), the Community Offender Manager (COM), an HMPPS forensic psychologist and the prisoner-commissioned forensic psychologist.

 

18.The Applicant was legally represented throughout the hearing.

 

19.The decision notes that the author of the prison-instructed psychological risk assessment (PRA) dated June 2024 had been due to attend the oral hearing. However, the day prior to the hearing the panel and parties were informed that she was away from work unwell and was therefore unable to attend. The report author’s supervisor offered to attend the hearing in her absence. This was discussed with the Applicant’s legal representative at the start of the hearing. Having had the opportunity to ask the supervisor some preliminary questions regarding her role and input into the PRA and thereafter having had the opportunity to take instructions from the Applicant, no objections were raised to the supervisor giving oral evidence in the place of the PRA author.

 

20.I have listened to the recording and the description set out in the panel’s decision is a fair and accurate account of what I have heard. The Applicant’s legal representative asked the supervisor a number of detailed and relevant questions (over a period of six minutes) focussed on their ability to give suitable evidence to the panel. He then took around ten minutes to take instructions from the Applicant. He confirmed that he had adequate opportunity to take instructions from the Applicant and was “happy to proceed”.

 

21.The Applicant’s legal representative also asked the panel chair about the comment in the January 2025 PCDs that questioning would need to be “targeted” and wondered whether there had been any discussion among the panel prior to the hearing questioning whether there would be sufficient time for an effective and fair hearing.

 

22.The panel chair explained she had been given the case recently with a 1pm start listed. There had been a morning case already listed. The view of the panel was that there would be limited focus on the index offence or the Applicant’s first five recalls, with the panel’s primary focus being on the sixth recall and the Applicant’s current position. The panel chair acknowledged that the directed joint psychological report had not been provided; had it been available, this would have cut down the anticipated volume of questioning. The panel chair noted that the prison was expected to accommodate hearings “until 5 or 5.30” so anticipated that the hearing would conclude in time. The panel chair asked the legal representative if he was suggesting otherwise. He replied, “no chair, thank you for your explanation”.

 

23.The panel did not direct the Applicant’s release.

 

The Relevant Law

 

24.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)

 

25.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)).

 

26.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)).

 

27.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

 

28.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.

 

29.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.”

 

30.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).

 

31.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.

 

32.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.

 

33.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

 

34.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.

 

35.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.

 

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

 

Error of law

 

37.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.

 

38.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.

 

Time allocation and timekeeping

 

39.The matter of time allocation and timekeeping in a parole hearing was considered in R (Grinham) v Parole Board [2020] EWHC 2140.

 

40.Mr Grinham was a recalled determinate sentence prisoner and therefore the decision of the panel not to re-release him did not fall within the reconsideration mechanism afforded by rule 28. The challenge to the Parole Board’s decision not to re-release him therefore had to be made directly to the High Court.

 

41.In short, Mr Grinham was recalled to custody. He was then diagnosed with cancer. He was granted an expedited oral hearing at which his re-release was not directed. His case was that insufficient time had been allowed for the hearing. The (single member) panel chair made it clear there was an immoveable time constraint and that they had only agreed to chair the expedited case on the express basis that the hearing would need to be completed by a certain time. It did not appear that the panel chair had another hearing to complete that day. A late report was only served on the day of the hearing and Mr Grinham’s solicitor needed time to consider it and take instructions. Other pertinent information was not available at the hearing. The hearing was concluded without oral submissions on Mr Grinham’s behalf so that the missing information could be supplied. Closing submissions were made in writing. The High Court found the panel’s decision to be unfair, quashed it, and directed a further expedited oral hearing.

 

42.In doing so, Spencer J considered various matters in the round which led him to conclude that there was procedural unfairness, including:

 

(a)         Insufficient time being available for the hearing to be conducted in an unhurried and seemly manner (para. 65); and

 

(b)        Mr Grinham’s solicitor was unable to cross-examine witnesses fully for lack of time (para. 66).

 

43.The principles from Grinham were more recently applied in R (Woodhouse) v Parole Board [2025] EWHC 137 (Admin). Mr Woodhouse was also a recalled determinate sentence prisoner. The primary decision before the court was whether it was satisfied, on a balance of probabilities, that the allocated time was too short a listing for a fair determination of the issues before the panel. In this case, the court found that (in the particular circumstances of the claimant’s case) a two-hour hearing was not sufficiently long for a matter originally listed for three-and-a-half hours.

 

The reply on behalf of the Respondent

 

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

 

Discussion

 

Procedural unfairness

 

45.The Applicant contends that the hearing was procedurally unfair due to insufficient time allocation and the substitution of a key witness.

 

46.The hearing was relisted to commence at 1pm, with an expected finish by 5–5.30pm. Although the previous panel had adjourned the earlier hearing on time grounds, the new panel explicitly considered this issue in advance. The panel chair addressed this directly with the Applicant’s legal representative at the start of the hearing. The representative did not raise any objection to the timing and confirmed his understanding of the panel’s intention to proceed with focused questioning. Moreover, it is argued that the “same insufficient time slot was given”: it was not. The adjourned hearing had been listed for only three hours. In contrast, the reconvened hearing was allocated up to four hours and in fact ran to nearly four and a half hours.

 

47.I have listened to the hearing audio. There is no evidence that the hearing was unduly rushed, or that the legal representative was prevented from asking necessary questions or making submissions. The representative was afforded time to question witnesses and to take instructions. The circumstances of this hearing are, in my view, distinguishable from those in Grinham and Woodhouse, where the claimants were materially constrained in the presentation of their case. The Applicant had time to address the panel himself before his legal representative agreed to make closing submissions in writing. He asked for five days in which to do so.

 

48.As set out in Woodhouse, written closing submissions do not automatically support a finding of procedural unfairness. I have read the extensive written closing submissions in this case and do not find the Applicant to have been materially disadvantaged by their use. I can discern nothing procedurally unfair about the use of written submissions here. Moreover, there was nothing in these submissions that raised time constraints, an inability to question witnesses adequately, or the value of the supervisor’s evidence.

 

49.As to the substitution of the HMPPS psychologist by her supervisor, I note that the legal representative was again given time to assess her suitability, ask preliminary questions, and take instructions. He confirmed that he was content for the hearing to proceed on that basis. The supervisor was directly involved in the preparation of the PRA, and while she had not personally assessed the Applicant, her evidence was not inadmissible or procedurally improper.

 

50.There is no procedural requirement that a specific witness must attend, nor that psychological evidence must be given by the original report author. The panel made appropriate adjustments to ensure the hearing could proceed fairly, neither the Applicant nor his legal representative objected, and the Applicant had full legal representation throughout.

 

Irrationality

 

51.The Applicant also argues that the panel’s decision not to direct release was irrational. I find no merit in this submission. The panel was faced with competing professional views, a significant recall history, and a serious recent offence. Its conclusion that the Applicant was not yet safe to be released was reasonably open to it on the evidence before it. The panel was not bound to accept the more optimistic assessment and was entitled to prefer the more cautious view, provided it gave adequate and justifiable reasons for doing so - which it did.

 

52.This was a complex case, but it was properly case-managed and heard fairly. The panel’s decision is reasoned and within the range of outcomes lawfully open to it.

 

Decision

 

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

 

 

Stefan Fafinski

         02 April 2025