The Parole Board for England and Wales

 

 

[2025] PBRA 65

 

 

 

Application for Reconsideration by Thomas

 

Application

 

1.   This is an application by Thomas (the Applicant) for reconsideration of a panel decision on the papers dated 30 January 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 paper hearing decision, the dossier consisting of 169 pages and the application for reconsideration.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 10 March 2025. It has been written by the Applicant himself. It submits that there were factual errors in the dossier and submits explanations he wishes to put forward to explain why he considers he has not been treated fairly. As the Applicant is unrepresented I have considered his arguments under all the grounds of Rule 28.

 

5.   Reference will be made to the written arguments in the Discussion section below.

 

Background

 

6.   The Applicant received an extended sentence of 25 years imprisonment on 16 July 2013 following conviction after trial of three counts of rape. He also received concurrent sentences for attempted rape (5 years) and gross indecency with a child (2 years). The extended sentence comprised a custodial term of 19 years and an extended licence of 6 years. His sentence expiry date is in October 2037.

 

7.   The Applicant was 63 years old at the time of sentencing and is now 75 years old.

 

Current parole review

 

8.   The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) in September 2024 to consider whether or not it would be appropriate to direct his release.

 

9.   The MCA member considering the referral considered the principles in Osborn Booth & Reilly [2013] UKSC 61 concerning oral hearings and concluded that there were no reasons for holding an oral hearing. Nor was one requested by the Applicant. The case was therefore decided on the papers.

 

10.The member did not direct the Applicant’s release.

 

The Relevant Law

 

11.The panel correctly sets out in its decision letter dated 30 January 2025 the test for release.

 

Parole Board Rules 2019 (as amended)

 

12.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)).

13.[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)).]

 

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) 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.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.

Procedural unfairness

 

18. 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.

 

19. 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.

 

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

 

21.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.]

 

 

The reply on behalf of the Respondent

 

22.The Respondent has submitted no representations in response to this application.

 

Discussion

 

23.Errors of fact - the Applicant states that the dossier describes him as a category B prisoner when he has been in a category C prison since November 2020. He says that there is another error in that he is listed as a medium risk for indecent images when there have never been images involved in his offending.

 

24.I am satisfied that neither of these matters were matters taken into account by the panel member in her assessment of risk. His prison categorisation was not referenced by the panel and the offences considered by the panel were those of rape, attempted rape and gross indecency, no image offences appear on the PNC or are considered in the decision letter. Neither of the matters raised by the Applicant were taken into consideration and neither therefore forms a basis for reconsideration.

 

25.The Applicant states that he is “not happy” with the inference that he was drug dealing as this had never been raised with him. With regard to the poppy seeds found in his pockets he explains that he had been working in the gardens and would carry all kinds of seeds for planting and feeding the birds, mainly poppy and sunflower seeds. Again I am satisfied that these matters did not carry weight in the panel member’s assessment of risk and release.

 

26.The Applicant does not accept the claim of the escorting officer that he was violent, submitting that he is not capable of the violence alleged. Again, this is not a matter on which the panel member attached any weight such as to form a basis for reconsideration.

 

27.In his application the Applicant states that he wishes to bring to the attention of the panel that his risk levels having been raised he is now eligible for programmes such as Horizon. The panel member was aware of the increase in his risk making him eligible for programmes.

 

28.The Applicant submits that the matters he has raised (detailed above) led to him not being treated fairly. It is not clear whether his complaint is against the probation officer who he states produced erroneous information or against the panel.

 

29.Having carefully considered the decision letter I am satisfied that there was no unfairness in the consideration of the evidence or the conclusions reached which were not based on any errors of fact or law. The decision is clearly set out, fairly considered and properly reasoned. None of the matters raised in the application forms a basis for reconsideration.

 

 Decision

 

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

 

 

Barbara Mensah

8 April 2025