Robinson, Application for Reconsideration [2023] PBRA 213 (21 December 2023) [2023] PBRA 213
[32]There is a close relationship between irrationality and aspects of illegality. In relation to this, Saini J in R (Wells) v Parole Board 2019 EWHC 2710 said (para 32) “ A more nuanced approach in modern public law is 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 ” .32. I shall start with consideration of the question of whether there was core work outstanding. Generally, this would be taken to be work that would needed to be undertaken in closed conditions.33. In this case the panel set out (para 2.11) that the professionals were of the view that there was no core work outstanding. It is also recorded (para 2.16) that whilst there was a written report to that effect from a psychologist, she had not ‘interviewed or assessed’ the Applicant. This conclusion that had been reached by the professionals on this point formed a central plank in their respective assessments that the Applicant met the test for release.34. A further reason given by the panel for not accepting the view of the psychologist was that it was not based on a risk assessment (para 3.16). There was no risk assessment prepared for this review. The last one was from September 2020 which recommended a move to open conditions. This identified a number of areas where the Applicant should engage in 1-1 work with a psychologist.35. The panel were provided, however, with a report from April 2021 by a psychologist who had undertaken that 1-1 work. This report concluded that the Applicant had engaged well and completed all the aims set for him, other than d eveloping his understanding of how his attitudes towards sex and relationships have developed. For obvious reasons, this report did not include an assessment of risk.36. The fact that a previous panel had a risk assessment does not mean that the MCA member considering the case on the next review should automatically direct one. There will be a number of cases where that is not necessary and would just introduce a delay, as well as being a waste of resources. However, it would generally be of assistance to have a short line saying why it is the case that no report is being directed.37. Moving on, the panel do then give further reasons for their conclusion in para 3.16, which relate to the lack of evidence that the Applicant had addressed the question of sexual pre-occupation, but this relates back to the question of whether there was any core work outstanding.38. It is trite law that a panel is not obliged to follow the recommendations of the professionals. However, if a panel were to make a decision contrary to the opinions and recommendations of all the professional witnesses, it is important that it should explain clearly its reasons for doing so and that its stated reasons should be sufficient to justify its conclusions, per R (Wells) v Parole Board 2019 EWHC 2710 .39. I consider that this applies to any view of the professionals, at least as it relates to a material point in issue such as what core work outstanding (if any) there is.40. In assessing this it is pertinent to note that the report from the psychologist as to what outstanding core work was required came about following directions from the panel Chair in advance of the hearing that directed a written report. In those circumstances I consider that there was a heightened duty on the panel to give reasons why that report was not accepted, and to explain why it was not necessary for that witness to be called so that that point could be explored further.41. It does not appear that the Applicant was put on notice that this may be in issue, although the grounds do not make complaint of that, and I do not take this into account.42. Drawing the above together, it seems to me that the real question is whether the decision letter contains sufficient reasons for the Applicant, or for anyone else reading it, to understand why it is that the panel did not follow the recommendations of the professionals.43. It is clear from the decision letter that the panel approached its task conscientiously. It carefully analysed the written and oral evidence. The summary in Part 4 contains a helpful ‘balance sheet’ approach setting out the factors in favour of, and against, release that make it clear why the decision was reached.44. However, having given the case the anxious consideration required in a situation where the liberty of the individual is at stake, I do consider that there are insufficient reasons in explaining why it is that the views of the professionals that there is no core work outstanding (and, more widely, why release could not be directed) were rejected.45. As stated, the panel was perfectly entitled to reject the views presented by the professionals, provided the reasons for doing so were adequate.46. I do not consider that it was sufficient to say that the view of the psychologist (supported by the other two witnesses) as to what core work there may be was not based on a meeting with the Applicant.47. I also consider that, given that he was previously recommended for a move to open conditions and the recommendations of the professionals, more reasons were required to be given as to why there was still core work outstanding.48. The panel gave further reasons for not directing the Applicant’s release at 3.17 that relate to his alcohol misuse. It could be said to be a distinct reason for not directing his release (and therefore make any errors in relation to the question of sexual pre-occupation not material). However, I do not think it would be fair to reject the application on that basis. The conclusion as to core work was clearly a significant part of the panel’s decision. If that part cannot stand, the decision as a whole cannot. Decision49. In those circumstances I felt bound to conclude that the decision to not direct release was (in the sense set out above) irrational. I do so solely for the reasons set out above. The application for reconsideration is therefore granted and the case should be reviewed by a fresh panel by way of an oral hearing. Daniel Bunting 21 December 2023