The Parole Board for England and Wales

 

 

[2025] PBRA 69

 

 

 

Application for Reconsideration by Knight

 

Application

 

1.   This is an application by Knight (the Applicant) for reconsideration of a decision of an oral hearing on 28 January 2025 not to direct his 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 of 731 pages now including the decision letter (DL), the subject of this application.

-      The grounds for seeking reconsideration.

 

Request for Reconsideration

 

4.   The application for reconsideration is dated 11 February 2025.

 

5.   The grounds for seeking a reconsideration are (in summary) as follows:

 

a.    The panel adopted a flawed risk assessment which rendered the decision irrational.

b.   The panel mistakenly assessed the “imminence” of risk and the ability of licence conditions to manage that risk.

c.    The panel failed to give the proper weight to the fact that prior to his recall the Applicant had been at liberty for 4.5 years.

d.   In addition the Applicant had displayed sufficient by way of internal controls both as regards violence and the use of illegal drugs to show that his risk had reduced sufficiently to justify his release.

e.    The panel placed undue weight on admittedly unproven allegations. This in part resulted in their preferring the evidence of the prison psychologist to that of the independent psychologist.

f.     The panel gave insufficiently compelling reasons for preferring the conclusion of the prison psychologist over that of the independent psychologist.

g.   Both the prison psychologist and the Community Offender Manager (COM) indicated that there would likely be warning signs if the risk posed by the Applicant began to increase while he was in the community. The led to an irrational finding concerning his risk and its imminence.

h.   In particular the panel placed insufficient weight on the support which the imposition of a condition requiring the Applicant to wear an alcohol tag would give to licence conditions so as to reduce the risk posed by the Applicant to an acceptable level.

i.     These grounds taken together render the decision “irrational”.

 

Background

 

6.   The Applicant is now 50. In October 2007 he was sentenced to imprisonment for public protection (IPP) for possession of a firearm while committing a Schedule 1 offence and attempted robbery. In April 2008 he was sentenced to similar sentences for three offences of robbery, and one of possession of an imitation firearm while committing an offence. He has three times been released on licence and three times recalled to prison. He was released on licence in 2014 but recalled to prison in 2018. He was convicted of an assault on his partner committed before that recall. He was again released on licence in June 2019 but recalled in December 2020. He was again released in September 2021 but recalled in October 2022. Both the later recalls were preceded by allegations of rape which were not proceeded with.

 

Current parole review

 

7.   The Applicant’s case was referred to the Parole Board by the Secretary of State (the Respondent) on 18 October 2022 following his most recent recall. The case was subject to a number of adjournments in May and October 2024 and the DL’s issue was adjourned following the hearing until 20 February 2025.

 

8.   The panel sat on 28 January 2025 to hear the case. Evidence was given by the Prison Offender Manager (POM), the COM and two psychologists, one instructed by the SoSJ and one by the Applicant. The Applicant was legally represented.

 

The Relevant Law

 

9.   The panel correctly set out in its DL (at paragraph 4) the test for release.  

 

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)).

  

11.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)).

 

12.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

 

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) 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).

 

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.

 

Procedural unfairness

 

19.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.

 

20.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.

 

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

 

Error of law

 

22.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.

 

23.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.

 

24.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.

 

25.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."

 

26.Omitting to put information before a panel is not a ground for procedural unfairness, as has been confirmed in the decision on the previous reconsideration application in Williams [2019] PBRA 7. This is the case even where the information, had it been before the panel, would have been capable of altering its decision, or prompting the panel to take other steps such as putting the case off for an oral hearing where the new information and its effect on any risk assessment could be examined. This is because procedural unfairness under the Rules relates to the making of the decision by the Parole Board, and when making the decision the panel considered all the evidence that was before them. There was nothing to indicate that further evidence was available or necessary, and so there was nothing to indicate that there was any procedural unfairness.

 

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

 

28.The Respondent offered no representations.

 

Discussion

 

29.As to Grounds 5a and f. The DL explains clearly and rationally at paragraphs 2.16-2.18 and then at 4.6 why it favoured the assessment of the recommendations of the prison psychologist over that of the psychologist called on behalf of the Applicant. It is important to note in dealing with this ground and the remaining grounds that the panel heard the evidence live and in combination with the evidence given by the other professionals and the Applicant himself.

 

30.As to Ground 5b and the “imminence” of any risk presented by the Applicant the panel was entitled conclude in view of the evidence given - as it did at paragraph 4.7 of the DL - that “Because of the nature of the index and other offending, the outstanding work to address risks, and the lack of sustained and successful testing of the associated relevant risk factors in the community, the panel assesses that [the Applicant] still poses a significant risk. The panel also accepts that serious offending could occur at any time and his risks could escalate, and become imminent, should he experience poor emotional management, struggle to cope within the community (including with stressors, substance (drugs or alcohol) misuse, any lack of personal or professional support), and any concerns in relationships.” (My highlighting).

 

31.The panel had ample grounds for coming to that conclusion bearing in mind the chequered history of the Applicant both before and since he committed the index offences.

 

32.As to Grounds 5c and d. While it was true that he had spent considerable time at liberty following his first release from prison in 2014 (4.5 years), his second (18 months) and third (13 months), the first recall clearly gave rise to an increase in the risk he posed in particular to females and the panel - and the COM - were entitled to express the view that his risk still remained sufficiently high and imminent to warrant his continued detention. It is noteworthy that the POM who recommended release identified inter-personal violence as a “major risk” but that it was not imminent and would be likely to arise “after time in the community”.

 

33.Ground 5e. The “unproven” allegations. The panel dealt with these carefully and in accordance with the guidance handed down from time to time by the courts.

 

34.Grounds 5g and h. Clearly there was no agreement between the two psychologists as to the right disposal of the case. The same applied to the POM, who recommended release, and the COM who did not. In my judgment the panel explained clearly why in the end it reached the decision it did at 3.4 and later at 4.6-4.9.

 

35.Any case in which the professional witnesses differ in their opinions during a hearing which lasts several hours, and at which the offender gives evidence, would require very serious errors of procedure or serious irrationality for the eventual decision to be amenable to an order for reconsideration against the strict principles set out in the summary of the law set out above. This is definitely not such a case. The panel was quite entitled to reach the decision it did and carefully explained why it had reached it in the lengthy DL.

 

Decision

 

36.For these reasons, I do not consider that the decision was irrational or unfair and accordingly the application for reconsideration is refused.

 

 

 

Sir David Calvert-Smith

08 April 2025